LIBRARY 

OF  THE 

UNIVERSITY  OF  CALIFORNIA. 

Class 


Daniel  Webster 

The  Expounder  of  the 
Constitution 


Daniel  Webster 

From  the  etching  by  Hollyer,  after  the  painting 
l>v    Ames 


Daniel  Webster 

The  Expounder  of  the 
Constitution 


By 

Everett  Pepperrell  Wheeler 


"  We  cannot  think  of  America  without  him.  We  cannot  think  of 
the  Constitution  or  of  the  Union  without  him.  His  figure  naturally 
belongs  to  and  mingles  with  all  great  scenes  and  places  which  belong 
to  liberty." — GEORGE  FRISBIE  HOAR. 


G.   P.   Putnam's  Sons 
New  York  and  London 

Gbe  "Knickerbocker  press 
1905 


tt»»* 


COPYRIGHT,  1904 

BY 
EVERETT  PEPPERRELL  WHEELER 


Published,  January,  1905. 


Ube  ftnicttecbocbec  press,  "Hew  IJorft 


PREFACE 

I  WAS  brought  up  among  men  who  knew  Mr. 
Webster  personally,  and  loved  and  honored  him. 
I  heard  his  oration  before  the  New  York  Histori 
cal  Society  just  before  I  went  to  college.  In  my 
Freshman  year  I  went  to  his  funeral,  and  saw  him 
lie  in  simple  state  on  his  lawn  at  Marshfield.  Every 
flag  was  at  half-mast  and  every  street  draped  in 
mourning.  The  hills  were  black  with  the  countless 
throngs  who  assembled  to  pay  the  last  tribute  of 
respect  to  the  first  American  of  his  day.  The 
country  showed  how  deeply  it  felt  the  loss  of  him 
who  for  fifty  years  had  served  it  faithfully.  My 
soul  took  in  something  of  the  universal  emotion. 

Then  again,  the  men  who  influenced  me  in  my 
youth  were  alive  to  the  difficulties  of  the  political 
situation,  and  their  talk  was  of  Mr.  Webster,  and 
the  country,  and  the  Union,  and  of  the  part  he  had 
played  in  the  long  struggle  that  attended  their 
growth,  and  that  finally  effected  their  preservation. 
I  lived  through  the  Civil  War  and  saw  what  that 
preservation  cost  when  the  final  grapple  came. 

My  professional  studies  have  led  me  to  a  careful 
examination  of  the  great  cases  that  Webster  argued, 
and  the  decisions  that  followed  his  arguments,  and 
that  have  moulded  our  Constitution  and  made  it 


16558 


iv  Preface 

adequate  to  the  needs  of  a  great  Nation.  For 
twenty  years  in  the  brief  intervals  afforded  a  busy 
lawyer  by  the  demands  of  his  exacting  profession, 
I  have  been  collecting  the  materials  for  this  book. 
It  has  really  been  an  evolution,  and  I  send  it  forth 
now,  invoking  for  it  the  friendly  consideration 
of  my  fellow-citizens,  and  believing  that  the  Web 
ster  lesson  was  never  more  needed  than  it  is  now. 
One  necessary  result  of  free  institutions  is  to  de 
velop  independence.  But  the  majority  of  mankind 
will  always  follow  a  leader.  And  the  independence 
of  the  leader  often  begets  subservience  on  the  part 
of  the  follower,  the  result  of  which  is  injurious  to 
the  Commonwealth.  In  these  days  of  industrial 
warfare,  it  is  especially  necessary  to  recur  to  the 
principles  of  our  Constitution,  and  to  cultivate  re 
spect  for  the  rights  of  others  as  sedulously  as  we 
insist  upon  our  own.  This  was  the  motif  of  Mr. 
Webster's  career. 

My  attention  was  first  drawn  to  the  comparison 
between  the  Seventh  of  March  speech  and  Mr.  Lin 
coln's  first  inaugural  by  my  cousin  Alexander  S. 
Wheeler,  of  Boston.  He  knew  Mr.  Webster  well. 
His  suggestions  and  personal  knowledge  have  been 
of  great  service  to  me  in  the  preparation  of  this 
book. 

I  have  made  a  careful  examination  of  the  Web 
ster  manuscripts  in  the  Congressional  Library,  and 
in  the  Library  of  the  New  Hampshire  Historical 
Society  at  Concord,  N.  H.  In  both  I  have  found 
much  important  unpublished  material.  Probably 
the  most  interesting  of  this  is  a  manuscript  of  Mr. 


Preface  v 

Justice  Story,  giving  an  account  of  the  argument 
of  the  Dartmouth  College  case,  and  of  the  case  of 
Gibbons  v.  Ogden,  that  I  discovered  in  the  Library 
at  Washington. 

Most  of  my  references  to  Mr.  Webster's  writings 
are  to  the  edition  of  his  works  in  six  volumes,  pub 
lished  by  Little  &  Brown  during  Mr.  Webster's 
lifetime,  and  of  which  numerous  editions  have  since 
been  published.  This  edition  is  referred  to  as 
Webster  s  Works.  The  recent  more  complete  edi 
tion,  published  by  Little,  Brown  &  Company,  is 
referred  to  in  those  cases  in  which  it  contains  mat 
ter  not  in  the  original  edition.  This  is  cited  as 
Webster  s  Writings  and  Speeches. 

EVERETT  P.  WHEELER. 


CONTENTS 

CHAPTER  I 

PAGE 

Introduction       ...........         i 

CHAPTER  II 

Early  Professional  Life — Extension  of  Constitution  to  New  States — 
Town  of  Pawlet  vs.  Clark — Criminal  Jurisdiction  in  Harbors — 
U.  S.  vs.  Bevans 12 

CHAPTER  III 

Obligation   of   Contracts — Law  of   the  Land — Corporate 
Franchise — Dartmouth  College  Case  ......       16 

CHAPTER  IV 

Supremacy  of  the  National  Government — Power  to  Charter  a  Rank 

— McCulloch  vs.  Maryland  ........       34 

CHAPTER  V 

Interstate  Commerce — Gibbons  vs.  Ogden          .....       47 

CHAPTER  VI 

The  Slave  Trade — La  Jeune  Eugenie 63 

CHAPTER  VII 

State  Insolvent  Laws — Ogden  vs.  Saunders        .....       67 

vii 


viii  Contents 

CHAPTER  VIII 

PAGE 

Acquisition   of   New   Territory — American   Insurance   Company  vs. 

Canter         ...........       70 

CHAPTER  IX 

>*The  United  States  not  a  Confederacy  but  a  Union — Reply  to  Mr. 

Hayne — Carver  vs.  Astor's  Lessee       ......       76 

CHAPTER  X 

United  States  a  Union,  not  a  Confederacy — Subject  Continued 
— Reply  to  Calhoun     .........       93 

CHAPTER  XI 

Power  of  the  United  States  over  Acquired  Territory  when  Admitted 

as   a  State — New  Orleans  vs.  United  States         .         .         .         .118 

CHAPTER  XII 

Effect  of  Grant  of  One  Franchise  upon  Power  to  Grant  Rival  Fran 
chise — The  Charles  River  Bridge  Case          .         .         .         .         .121 

CHAPTER  XIII 

Rights   of   Corporations  in  Other  States — Comity  between  States — 

Bank  of  Augusta  vs.  Earle  .         .         .         .         .         .         .         .124 

CHAPTER  XIV 

Girard  Will  Case — Rhode  Island  Boundary  Case — Case  of  the  Lex 
ington          ...........     129 

CHAPTER  XV 

Eminent  Domain  over  Franchise — West  River  Bridge  Case        .         .     134 

CHAPTER  XVI 

Power  to  Reorganize  State  Governments — Dorr  Rebellion.         .         .     137 


Contents  ix 

CHAPTER  XVII 

PACK 

State  Power  over  Foreign  Commerce — Passenger  Tax  Cases       .        .      143 

CHAPTER  XVIII 

Extensive  Range  of  Webster's  Legal  Acquirements — Van  Rensselaer 

Title — Van  Rensselaer  vs.  Kearney     .         .         .         .         .         .154 


«^Th. 


CHAPTER  XIX 

he  Constitution  and  Slavery — Seventh  of  March  Speech  .         .         .15? 

CHAPTER  XX 
Conclusion 177 

Table  of  Cases 181 

Index 183 


Daniel  Webster 

The  Expounder  of  the  Constitution 


CHAPTER  I 

INTRODUCTION 

THE  work  of  a  truly  great  man  must  needs  be 
permanent  in  its  nature.  To  understand  the  true 
character  of  existing  systems  and  to  value  them 
justly,  it  is  needful  to  recur  from  time  to  time  to 
their  development  anji'  to  study  the  part  that  states 
men  have  played  therein.  No  American  has  done 
more  to  make  our  government  what  it  is  than 
Daniel  Webster.  To  understand  the  Constitution 
of  America,  we  must  needs  examine  what  he  did 
while  it  was  yet — so  to  speak — in  the  gristle,  and 
this  study  will  also  teach  us  something  of  the  true 
function  of  the  profession  of  law  in  this  country. 

The  labors  that  fall  to  an  American  lawyer  are 
so  varied  in  character  that  no  one  man  can  perform 
them  all.  In  the  mother  country  the  profession 
for  this  reason  is  divided  into  ranks  and  grades, 
and  he  who  serves  in  one  does  not  attempt  the 


2  Daniel  Webster 

responsibilities  of  the  other.  The  attorney  must 
be  a  shrewd  and  skilful  man  of  business.  The 
proctor  must  be  familiar  with  the  rules  of  naviga 
tion.  There  is  no  height  of  intellectual  attainment 
to  which  the  advocate  may  not  aspire,  and  no 
resource  of  learning  or  power  of  persuasive  or 
judicial  eloquence  which  will  not  aid  him  in  his 
daily  task. 

Again,  the  development  of  our  system  of  juris 
prudence  to  provide  for  the  rapid  changes  in  the 
conditions  of  business  and  social  life  imposes  a 
constant  duty  upon  the  intelligent  and  conscien 
tious  lawyer.  The  law  which  regulated  the  busi 
ness  of  a  few  stages  and  canal-boats  was  inadequate 
to  direct  the  complicated  affairs  of  carriers  by  steam 
on  land  and  sea.  The  judge-made  code  for  the 
carrier  of  articles  that  could  be  weighed  and  meas 
ured,  had  but  a  limited  application  to  the  companies 
who  put  at  the  service  of  the  public  the  invisible 
force  of  electricity,  and  have  made  New  York  and 
Boston,  Chicago  and  San  Francisco,  parts  of  one 
great  municipality.  The  English  common  law  was 
well  adapted  to  the  thickly  settled  and  compact 
island  of  Great  Britain,  but  was  insufficient  and  in 
some  particulars  ill  adapted  to  the  requirements  of 
a  people  scattered  over  thirteen  Commonwealths 
just  formed  into  one  Union. 

There  is  yet  another  more  arduous  responsibility 
resting  on  the  American  lawyer  from  which  our 
English  brethren  are  exempt.  First  among  the 
nations  the  United  States  established  a  written 
Constitution  which  should  be  the  supreme  law  of 


Introduction  3 

the  land,  supreme  over  Executive  and  Legislature, 
and  which  gave  to  the  courts  of  justice  the  power  to 
enforce  its  supremacy,  by  declaring  that  a  statute 
which  had  received  the  votes  of  both  houses  of 
Congress  and  the  signature  of  the  President,  or 
which  had  been  adopted  by  a  State  Legislature 
and  signed  by  its  Governor,  should  yet  be  alto 
gether  held  for  naught  if  it  violate  the  supreme 
Constitution. 

Well  might  we  say  when  we  contemplate  the 
magnitude  of  these  labors, — Who  is  sufficient  for 
these  things?  No  doubt  now,  as  in  the  Apostles' 
time,  there  are  many  who  pervert  the  word  of  God, 
of  whose  justice  and  equity  courts  of  justice  ought 
to  be  the  visible  embodiment.  But  also  there  are 
many  who,  like  St.  Paul,  speak  in  godly  sincerity, 
and  fulfil  with  singleness  of  heart  the  true  function 
of  the  lawyer,  which  is  to  aid  the  court  in  the  dis 
charge  of  its  exalted  and  responsible  office. 

Preeminently  such  a  man  was  Mr.  Webster.  He 
became  a  member  of  the  bar  at  a  time  when  many 
of  the  most  important  questions  since  determined 
were  unsettled.  More  than  any  other  man,  he  aided 
in  their  settlement.1 

Coleridge  tells  us  that  "  The  first  man  upon 
whom  the  light  of  an  idea  dawned,  received  thereby 
the  function  of  a  lawgiver."  It  was  because  Mr. 
Webster,  in  his  capacious  mind,  apprehended  with 

1  "  It  is  impossible  to  overestimate  the  support  that  the  court  derives  from 
the  bar,  and  in  Mr.  Webster's  arguments  fidelity  to  the  court  is  as  conspicu 
ous  as  fidelity  to  his  client.  It  is  not  client  first  and  conscience  afterwards, 
but  duty  to  both  together,  one  and  inseparable." — CHIEF  JUSTICE  FULLER, 
Webster  Centennial,  p.  275. 


4  Daniel  Webster 

such  clearness  the  idea  which  was  the  soul  of  the 
novel  system  our  fathers  established,  that  he  was 
able  to  lead  our  courts  to  formulate  this  idea  in 
their  judgments. 

But  it  may  be  asked,  How  can  this  be  ?  Is  it 
not  the  duty  of  judges  to  declare,  and  not  to  make 
the  law  ?  In  one  sense  no  doubt  it  is.  The  judge 
ought  not  to  depart  from  the  principles  of  the  law 
as  he  finds  them  established.  But  when  a  case 
comes  up,  as  often  it  does,  which  involves  a  new 
application  of  these  principles  or  modification  of 
rules  already  settled,  to  adapt  them  to  a  new  state 
of  facts  for  which  no  precise  provision  has  been  or 
could  have  been  made,  the  judge  does,  in  a  very 
real  and  important  sense,  make  the  law  and  is  a 
lawgiver  as  well  as  a  judge.  If  the  lawyer  who 
presents  such  a  case  to  the  court  is  adequate  to  his 
task,  he  must  first  thoroughly  understand  the  exist 
ing  rule  and  the  reason  for  it ;  next,  he  must  appre 
ciate  the  change  in  circumstances  and  conditions 
which  makes  this  in  its  precise  form  no  longer  ap 
plicable.  To  this  he  must  add  constructive  ability, 
and  be  able  to  show  how  the  rule,  as  it  has  hitherto 
served,  may  most  wisely  and  fitly  grow  to  meet  the 
requirements  of  the  present  and  of  the  future.  No 
man  in  America  ever  combined  these  qualities  to  a 
higher  degree  than  Mr.  Webster.  He  understood 
the  history  and  character  of  the  mother  country 
and  the  common  law  which  was  the  necessary  out 
growth  of  that  character  and  history.  He  looked 
into  the  very  heart  of  the  American  people  and 
realized  our  needs.  He  was  able  to  point  out  the 


Introduction  5 

path  by  which  we  could  most  wisely  be  led  to  our 
true  growth  and  development.  With  unrivalled 
power  for  making  hard  places  easy  and  dark  things 
clear,  he  succeeded  in  impressing  his  own  convic 
tions  upon  the  courts  before  which  he  practised. 

In  dealing  even  with  the  precision  of  mathematics, 
great  minds  can  see  what  lesser  minds  fail  to  ap 
prehend.  What  they  see  they  can  make  clear.  The 
truths  which  Newton  and  Laplace  were  the  first  to 
behold  and  develop  can  now  be  taught  to  our  col 
lege  students  ;  and  judges  many  times  rightly  and 
justly  laid  down  as  law  what  the  genius  of  Webster 
perceived  and  demonstrated — what  without  the  aid 
of  that  genius  might  have  remained  undetermined. 
Most  important  of  all  his  public  services  was  the 
part  he  took  in  demonstrating  the  true  method  of 
construing  the  Constitution  of  the  country.  The 
very  fact  that  this  was  the  supreme  law  of  the  land 
made  it  all  the  more  important  that  its  construction 
should  be  established  on  the  right  basis. 

From  the  beginning  there  was  a  school  of  think 
ers  who  sought  to  limit  the  scope  of  our  great 
charter  and  restrain  its  plain  provisions  within  nar 
row  bounds.  It  is  the  most  brief  of  constitutions. 
Its  sections  and  articles  never  undertook  to  provide 
in  detail  for  all  emergencies  which  might  arise,  but 
established  general  provisions,  which,  fairly  con 
strued,  should  be  adequate  for  every  occasion.  If 
the  country  were  to  be  held  in  bondage  to  the 
letter,  and  disregard  the  spirit  of  the  Constitution, 
the  purpose  stated  in  its  preamble,  "  to  form  a  more 
perfect  Union,"  would  fail  of  accomplishment. 


\ 


6  Daniel  Webster 

No  doubt  there  were  thinkers  who  sought  to 
give  such  a  lax  interpretation  to  its  provisions  that 
they  might  mean  anything  or  nothing,  as  the  im 
mediate  occasion  might  seem  to  require,  and  the 
strict  constructionists  did  good  service  in  restrain 
ing  the  vagaries  of  such  reasoners.  The  merit  of 
Mr.  Webster  lay  in  this,  that  he  maintained  the 
golden  mean,  and  in  numerous  arguments  pointed 
out  clearly  and  convincingly  the  evils  which  led  to 
the  formation  of  the  Constitution,  the  objects  its 
founders  sought  to  accomplish  and  the  methpd  by 
which  they  had,  upon  fair  rules  of  construction, 
achieved  the  great  end  they  had  in  view. 

The  celebration  of  the  centennial  of  the  acces 
sion  of  Chief  Justice  Marshall  to  the  Supreme 
Court  of  the  United  States  called  attention  to  the 
leading  part  which  the  decisions  of  that  Court  have 
played  in  making  the  nation  what  it  is.  Side  by 
side  with  the  great  name  of  Marshall  should  be 
placed  that  of  Webster.  The  arguments  of  the 
one  were  as  necessary  as  the  decisions  of  the  other. 
They  combined  to  impress  upon  the  American 
people  a  conviction  of  the  possibilities  of  the 
country,  of  the  fitness  of  the  government  which 
they  had  founded  to  enable  them  to  make  the  most 
of  these  possibilities  and,  above  all,  the  conviction 
that  the  thirteen  Colonies  had  become  blended 
into  one  indissoluble  Union. 

It  is  hard  for  us  to  realize  in  the  days  of  our 
greatness  the  weakness  and  insignificance  of  our 
beginnings.  It  frequently  happens  under  Ameri 
can  institutions  that  a  man  born  of  the  humblest 


Introduction  7 

parents  and  amid  the  most  adverse  circumstances 
has  become  a  man  of  wealth,  power  and  influence. 
But  the  rise  of  the  most  remarkable  of  them  all  is 
not  more  extraordinary  than  the  change  which  has 
taken  place  in  the  condition  of  the  American  people 
since  the  birth  of  Mr.  Webster.  He  was  born  at 
the  conclusion  of  the  Revolutionary  War  and  just 
before  the  treaty  of  peace  was  concluded  between 
the  thirteen  Colonies  and  the  United  Kingdom  of 
Great  Britain  and  Ireland.  His  father  was  one  of 
the  hardy  settlers  who  had  not  found  scope  for 
their  energies  in  the  surroundings  of  their  child 
hood,  and  had  gone  into  the  forest,  not  only  to 
discover,  but  really  to  create  a  new  world.  The 
little  house  in  Salisbury,  New  Hampshire,  where 
Daniel  Webster  was  born  on  the  i8th  day  of  Janu 
ary,  1782,  was  on  the  border  of  colonial  civiliza- 
tifon.1  The  Colonies  were  scattered  along  the 
Atlantic  coast  and  the  eastern  slope  of  the  Alle- 
ghanies.  They  had  neither  money  nor  credit ;  were 
deeply  in  debt,  with  an  army  about  to  be  disbanded, 
the  meagre  pay  of  which  was  long  in  arrears.2  They 
lived  under  a  Confederation  which  gave  to  the  gen 
eral  government  no  real  power,  and  which  worked 

1  As  Mr.  Webster  said  in  his  speech  at  Saratoga,  August  19,  1840  (Web 
ster's  Works,  vol.  ii.,  p.  30): 

"  Gentlemen,  it  did  not  happen  to  me  to  be  born  in  a  log-cabin;  but  my 
elder  brothers  and  sisters  were  born  in  a  log-cabin,  raised  amid  the  snow 
drifts  of  New  Hampshire,  at  a  period  so  early  that,  when  the  smoke  first 
rose  from  its  rude  chimney,  and  curled  over  the  frozen  hills,  there  was  no 
similar  evidence  of  a  white  man's  habitation  between  it  and  the  settlements 
on  the  rivers  of  Canada." 

1  See  Stone's  interesting  Life  of  John  Hoivland,  a  Rhode  Island  soldier, 
who,  when  his  enlistment  expired,  was  obliged  to  walk  home  from 
Yorktown. 


8  Daniel  Webster 

so  badly  that  it  left  the  Colonies  at  the  end  of  the 
war  with  actually  less  unity  that  they  had  at  the  be 
ginning.  The  father  of  Daniel  Webster  had  been 
a  distinguished  officer  in  the  Revolution,  and  in 
common  with  his  comrades  had  smarted  under  the 
weakness  and  incompetency  and  consequent  injus 
tice  of  the  government  of  the  Confederation,  and  he 
realized,  therefore,  the  absolute  necessity  for  a  united 
and  stable  government,  if  the  thirteen  independent 
Colonies  were  ever  to  become  a  united  nation. 

The  treaty  of  peace  concluded  at  Paris,  Sep 
tember  3,  1783,  contained  in  its  first  article  the 
following  clause  : 

"  His  Britannic  Majesty  acknowledges  the  said  United 
States,  viz:  New  Hampshire,  Massachusetts  Bay,  Rhode  Island 
&  Providence  Plantations,  Connecticut,  New  York,  New  Jer 
sey,  Pennsylvania,  Delaware,  Maryland,  Virginia,  North  Caro 
lina,  South  Carolina  &  Georgia." 

In  the  breast  of  an  American  of  the  present 
day,  this  description  of  his  country  cannot  fail  to 
awaken  amusement.  But  the  description  was  ac 
curate  at  the  time.  The  necessity  for  something 
better  led  to  the  calling  of  the  convention  for  the 
forming  of  a  new  Constitution  for  the  United 
States.  The  preamble  to  this  instrument,  as  finally 
adopted,  uses  very  different  language.  There  are 
no  words  there  indicating  that  these  "  Independent 
States  "  were  any  longer  to  remain  independent  as 
between  themselves.  On  the  contrary,  it  begins 
as  follows : 

"  We,  the  people  of  the  United  States,  in  order  to  form  a 
more  perfect  Union,  establish  Justice,  ensure  domestic  Tran- 


Introduction  9 

quillity,  provide  for  the  common  defence,  promote  the  general 
Welfare,  and  secure  the  Blessings  of  Liberty  to  ourselves  and 
our  Posterity,  do  ordain  and  establish  this  Constitution  for  the 
United  States  of  America." 

In  debates  which  took  place  in  the  conventions 
which  were  held  in  the  different  States  to  consider 
whether  or  not  they  would  ratify  this  Constitution, 
the  pivot  on  which  the  discussion  turned  was  really 
whether  this  preamble  expressed  the  national  con 
sciousness.  Patrick  Henry  cried  in  Virginia : 
44  Who  gave  them  the  right  to  say,  — '  We,  the 
people  of  the  United  States'?"  True  enough, 
that  right  had  not  been  conferred  upon  the  dele 
gates.  But  they  assumed  it,  and  when  this  assump 
tion  of  authority  was  ratified,  that  which  at  first  was 
but  a  proposition  became  the  Constitution  of  a  na 
tion.  The  student  of  the  constitutional  history  of 
the  United  States  from  1789  to  1861  knows  well 
that  there  was  a  constant  strife  between  those  who 
adhered  to  the  old  notion  that  the  States  were  still 
what  the  treaty  declared  them  to  be,  and  those 
who  maintained  that  the  Constitution  had  welded 
them  into  a  nation. 

As  Mr.  Webster  himself  said  in  the  debate  on 
the  Force  Bill,  February  16,  I8331  : 

"  The  Constitution,  Sir,  regards  itself  as  perpetual  and  im 
mortal.  It  seeks  to  establish  a  union  among  the  people  of  the 
States,  which  shall  last  through  all  time.  Or,  if  the  common 
fate  of  things  human  must  be  expected  at  some  period  to 
happen  to  it,  yet  that  catastrophe  is  not  anticipated. 

1  Webster's  Works,  vol.  iii.,  p.  471. 


io  Daniel  Webster 

"  The  instrument  contains  ample  provisions  for  its  amend 
ment,  at  all  times;  none  for  its  abandonment,  at  any  time.  It 
declares  that  new  States  may  come  into  the  Union,  but  it  does 
not  declare  that  old  States  may  go  out.  The  Union  is  not  a 
temporary  partnership  of  States." 

One  of  the  extraordinary  statements  in  Senator 
Lodge's  Life  of  Webster  is  that  all  the  early  fathers 
believed  in  the  right  of  secession.1  No  doubt 
some  of  them  did.  But  they  were  not  the  men 
who  were  responsible  for  the  Constitution. 

Rufus  King,  Roger  Sherman,  Alexander  Hamil 
ton  and  Benjamin  Franklin  knew  very  well  what 
they  were  about  when  their  great  Constitution  was 
published  to  the  world.2 

It  found  no  warmer  friends  anywhere  than  among 
the  old  soldiers  of  the  Revolution.  These  men  re 
alized  the  necessity  of  the  change  expressed  in  the 
preamble  and  rallied  to  the  support  of  the  Con 
stitution  which  Washington  signed,  with  as  much 
unanimity  as  they  had  stood  by  him  during  the 
war.  Among  them,  none  was  more  resolute,  more 
thoroughly  in  earnest,  than  the  father  of  Daniel 
Webster,  and  the  son  grew  up,  amid  the  forests 
and  mountains  of  his  native  State,  impressed  with 

1  Lodge's  Life  of  Webster,  pp.  176,  177. 

8 James  Russell  Lowell  in  his  "Essay  on  Abraham  Lincoln,"  Prose 
Works,  vol.  v.,  p.  201,  states  this  well  : 

"  Though  it  [secession]  contradicts  common-sense  in  assuming  that  the 
men  who  framed  our  government  did  not  know  what  they  meant  when  they 
substituted  Union  for  Confederation  ;  though  it  falsifies  history  which  shows 
that  the  main  opposition  to  the  adoption  of  the  Constitution  was  based  on 
the  argument  that  it  did  not  allow  that  independence  in  the  several  States 
which  alone  would  justify  them  in  seceding." 

See  also  the  argument  on  this  subject  in  Webster's  Reply  to  Calhoun, 
post,  pp.  102-107. 


Introduction  1 1 

the  conviction  that  he  was  the  citizen  of  a  nation. 
This  conviction  he  finally  impressed  upon  the  great 
majority  of  his  fellow-citizens  in  the  Northern  States 
and  upon  no  small  part  of  the  people  of  the  South 
ern  States.  It  was  this  conviction  that  carried  us 
through  the  Civil  War.  Without  it,  our  success  in 
that  great  struggle  would  have  been  impossible. 

As  well  said  by  an  American  historian  who  him 
self  lived  through  the  war  : 

"  For  that  magnificent  popular  enthusiasm  for  the  Union — 
an  enthusiasm  the  like  of  which  for  blended  fury  and  intel 
ligence,  enlisted  on  behalf  of  an  idea,  the  world  had  never  be 
fore  beheld;  this,  as  history  will  explain,  was  by  no  means  the 
birth  of  a  moment — Fort  Sumter  fired  it,  but  it  was  otherwise 
fuelled  and  prepared.  Daniel  Webster,  by  eminence,  his  whole 
life  long,  had  been  continuously  at  work.  Speech  by  speech, 
year  after  year,  the  great  elemental  process  went  on.  There 
men  might  scoff  and  here  men  might  jeer,  but  none  the  less 
through  jeer  and  scoff  the  harnessed  Titan  went  steadily  to  his 
task.  Three  generations,  at  least,  of  his  countrymen,  he  im 
pregnated,  mind  and  conscience  and  heart,  with  the  sentiment 
of  devotion  to  the  Union.  This  in  a  great  part  accounts  for 
the  miracle  in  1861." 

1  Seribner's  Monthly,  vol.  xii.,  p.  425  ;  "  Daniel  Webster  and  the  Com 
promise  Measures  of  1850,"  by  William  C.  Wilkenson. 

Another  interesting  statement  of  the  influence  of  Webster's  speeches  upon 
the  war  for  the  Union  is  to  be  found  in  Mellen  Chamberlain's  John  Adams 
and  Other  Essays,  p.  355  : 

"The  discourses  at  Plymouth  Rock  and  at  Bunker  Hill  were  not  for 
an  hour,  nor  was  the  Great  Reply.  In  the  days  of  their  utterance  they 
were  resplendent,  unprecedented  eloquence;  but  they  spake  truest  when 
they  became  wisdom  to  Lincoln  and  valor  to  Grant ;  they  rang  loudest  when 
heard  along  the  front'of  battle,  and  inspired  deeds  of  immortal  heroism  on 
a  hundred  fields." 

See  also  Rhodes,  History  of  the  United  States,  vol.  L,  p.  161 ;  Elaine, 
Twenty  Years  in  Congress,  vol.  i.,  p.  94;  and  Joseph  H.  Choate's  masterly 
oration  on  Rufus  Choate,  p.  23. 


CHAPTER  II 

EARLY    PROFESSIONAL    LIFE EXTENSION    OF    CONSTI 
TUTION      TO     NEW     STATES TOWN     OF     PAWLET 

VS.     CLARK CRIMINAL     JURISDICTION     IN     HAR 
BORS — U.    S.    VS.    BEVANS 

So  much  has  been  written  of  the  early  life  of  Mr. 
Webster  that  it  is  unnecessary  here  to  speak  further 
of  it.  Three  years  after  graduation  and  on  the  24th 
July,  1804,  being  then  twenty-two  years  of  age,  he 
became  a  student  in  the  office  of  Christopher  Gore 
in  Boston.  Mr.  Gore  had  been  a  member  of  the 
United  States  Senate,  and  had  been  our  Minister 
to  England.  Nothing  shows  more  clearly  the  ex 
traordinary  effect  which  even  then  was  produced 
by  the  personality  of  Mr.  Webster,  than  the  fact 
that  he,  without  any  introduction,  an  absolutely 
unknown  young  man,  should  have  been  admitted 
into  the  office  of  one  of  the  leaders  of  the  Massa 
chusetts  bar,  and  one  of  the  first  men  in  the  United 
States.1 

In  March,  1805,  Mr.  Webster  was  admitted  to 
the  bar  of  the  Suffolk  Common  Pleas.  In  the 
same  month,  he  opened  an  office  at  Boscawen,  N. 
H.,  near  his  father's  home,  where  he  remained 

'Webster's  Writings  and  Speeches,  vol.  xvii.,  p.  185. 


12 


Extension  of  Constitution  to  New  States    13 

until  that  father's  death.  In  September,  1807,  ^e 
removed  to  Portsmouth,  N.  H.  He  was  married 
on  the  twenty-fourth  of  June,  1808.  On  the  twelfth 
of  November,  1812,  he  was  elected  to  Congress 
from  the  Portsmouth  District,  and  took  his  seat  at 
the  extra  session  in  the  following  May.  In  August, 
1814,  he  was  reflected  to  Congress. 

At  the  February  Term  of  that  year,  he  appeared 
for  the  first  time  as  counsel  before  the  Supreme 
Court  of  the  United  States.  He  argued  two  prize 
cases  at  that  Term  and  appeared  in  the  same  cases 
at  the  following  Term,  additional  proofs  having 
been  orderea  in  both.  At  that  time,  the  difficul 
ties  of  travel  were  so  ^eat,  and  Washington  was 
consequently  so  difficult  of  access,  that  the  majority 
of  cases  in  the  Supreme  Court  of  the  United  States 
were  argued  either  by  members  of  Congress  or  by 
counsel  from  neighboring  States.  Baltimore  es 
pecially  had  a  brilliant  bar,  and  the  names  of  Pink- 
ney,  Wirt  and  Martin  appear  very  frequently  in 
the  reports  of  Cranch  and  Wheaton. 

The  first  appeal  of  real  importance  that  Mr. 
Webster  argued  in  the  Supreme  Court  was  that 
of  the  Town  of  Pawlet  vs.  Clark.1  In  this  case 
the  construction  of  that  clause  of  the  Constitution 
which  extended  the  judicial  power  of  the  United 
States  to  controversies  between  citizens  of  the 
same  State  claiming  land  under  grants  of  different 
States  was  involved.  Here  the  strict  construction- 
ist  appears  on  the  scene,  and  claims  that  this  phrase 
of  the  Constitution  meant  the  different  States  that 

1  9  Cranch,  292. 


H  Daniel  Webster 

framed  the  Constitution,  and  did  not  apply  to  any 
States  that  might  subsequently  be  admitted.  Web 
ster  convinced  the  Court  without  much  difficulty 
that  this  construction  was  too  narrow,  and  that 
this  clause  of  the  Constitution,  and  by  inference  all 
similar  clauses  in  that  instrument,  referred  not  only 
to  the  thirteen  States  which  framed  the  Constitu 
tion,  but  to  all  which  they  should  subsequently 
admit  as  integral  parts  of  the  Union.  This  seems 
too  plain  for  argument  now,  but  in  those  early 
days,  when  everything  was  in  a  formative  condition, 
the  decision  was  important,  and  in  its  essence  in 
volved  many  of  the  subsequent  decisions  which  did 
not  appear,  at  the  time  they  were  made,  to  be  so 
clear. 

The  rest  of  the  case  required  a  consideration  of 
the  character  of  the  grants  which  had  been  made 
by  the  Colonial  Governor  of  New  Hampshire  to 
the  town  of  Pawlet,  and  which  were  precedents 
for  the  subsequent  grants  by  the  various  States  for 
educational  purposes.  This  charter  divided  the 
land  which  was  set  apart  to  the  town  of  Pawlet 
into  sixty-eight  shares,  of  which  one  was  "  for  the 
incorporated  Society  for  the  propagation  of  the 
Gospel  in  foreign  parts,  one  share  for  a  glebe  for 
the  Church  of  England  as  by  law  established,  one 
share  for  the  first  settled  Minister  of  the  Gospel, 
one  share  for  the  benefit  of  a  school  in  said  Town." 

It  was  held  after  a  very  careful  investigation  of 
the  English  Ecclesiastical  Law,  that  the  town  could 
take  the  land  as  trustee,  and  that  where  no  Episco 
pal  church  was  established  before  the  Revolution 


Extension  of  Constitution  to  New  States    15 

the  State  could  appropriate  the  share  which  had 
been  given  for  such  purpose  by  the  original  charter 
and  apply  it  to  other  public  uses.  In  this  case 
Vermont  had  appropriated  to  the  use  of  public 
schools  the  glebe  right  which  had  not  been  taken 
up  by  the  Episcopal  Church,  and  the  Supreme 
Court  sustained  the  validity  of  this  statute. 

In  a  subsequent  case  in  which  Mr.  Webster  was 
counsel, —  Society  for  the  Propagation  of  the  Gos 
pel  in  Foreign  Parts  vs.  Town  of  New  Haven,1 — the 
rights  of  this  venerable  Society  came  further  under 
consideration  by  the  Court.  It  was  held  that  the 
charter  which  reserved  to  that  Society  a  share  of 
the  town  lands  vested  an  interest  in  the  Society 
which  the  Legislature  of  Vermont  had  no  power  to 
divest.  This  really  was  an  application  of  the  prin 
ciples  of  the  Dartmouth  College  case  stated  in 
Chapter  III. 

Mr.  Webster  does  not  appear  to  have  argued 
any  cases  at  the  February  Term  in  1816.  In  1817, 
he  appeared  in  numerous  prize  cases.  In  1818,  he 
had  to  deal  with  the  construction  of  that  clause  of 
the  Constitution  which  described  the  judicial  power 
and  extended  it  to  cases  of  admiralty  and  maritime 
jurisdiction.2  Here  it  was  held  that  the  meaning 
of  this  article  was  a  grant,  not  of  territory,  but  of 
jurisdiction,  and  that  the  harbors  in  the  different 
States,  although  within  the  admiralty  jurisdiction 
of  the  Courts  of  the  United  States,  were  not  with 
drawn  from  the  jurisdiction  of  the  particular  State 
in  which  they  happened  to  be  situated. 

1  8  Wheat.,  464.  *  U.  S.  vs.  Bevans,  3  Wheat.,  336. 


CHAPTER  III 

IMPAIRING  OBLIGATION   OF   CONTRACTS LAW  OF  THE 

LAND CORPORATE    FRANCHISES DARTMOUTH 

COLLEGE    CASE 

AND  now  in  order  we  approach  the  case  of  Dart 
mouth  College  vs.  Woodward,1  which  has  been 
cited  nine  hundred  and  seventy  times  in  subsequent 
cases,  more  frequently  than  any  other  American 
decision.2 

It  is  often  said  that  the  effect  of  subsequent  con 
stitutional  amendments  and  general  legislation  has 
been  to  rob  the  doctrine  announced  in  this  case  of 
much  of  its  vitality.  It  is  doubtless  true  that  after 
this  decision,  in  countless  ways,  public  apprehen 
sion  was  aroused  lest  the  corporations,  charters  for 
which  were  being  granted  by  the  Legislatures, 
or  which  were  incorporated  under  general  acts, 
should  become  too  strong  for  the  people  ;  and  lest, 
also,  applicants  might,  through  political  favoritism, 
or  even  more  ignoble  methods,  obtain  franchises 
the  grant  of  which  would  be  injurious  to  the  public. 
Laws  were  passed,  and  constitutional  amendments 
were  adopted,  the  object  of  which  was  to  reserve 

>4  Wheat.,  518. 

2  Alfre4  Russell,  in  Dartmouth  Centennial,  p.  282.     The  number  is  made 
up  to  the  year  1901.  '  It  must  now  exceed  one  thousand. 

16 


Dartmouth  College  Case  17 

to  the  Legislature  the  power  to  amend  or  repeal 
charters  of  corporations.  For  example,  the  Con 
stitution  of  the  State  of  New  York,  framed  and 
adopted  in  1846  (Article  8,  Section  i),  provides  as 
follows : 

"  Corporations  may  be  formed  under  general  laws;  but  shall 
not  be  created  by  special  act,  except  for  municipal  purposes, 
and  in  cases  where,  in  the  judgment  of  the  legislature,  the 
objects  of  the  corporation  cannot  be  attained  under  general 
laws.  All  general  laws  and  special  acts  passed  pursuant  to 
this  section,  may  be  altered  from  time  to  time,  or  repealed." 

But  notwithstanding  the  endeavors  that  were 
thus  made  to  weaken  the  effect  and  limit  the  scope 
of  the  decision  in  the  Dartmouth  College  case,  the 
principle  upon  which  it  was  based,  that  of  enforc 
ing  constitutional  guaranties  for  the  protection  of 
vested  rights,  remains  in  full  vigor,  and  has  been 
not  only  a  safeguard,  but  an  important  element  in 
the  growth  and  prosperity  of  the  American  people. 
Wretched,  indeed,  is  the  condition  of  any  nation 
in  which  the  peaceful  citizen  cannot  enjoy  in  secur 
ity  the  fruits  of  his  honest  labor.  No  system  of 
government  can  justly  be  called  a  republic  which 
does  not  secure  to  all  its  citizens,  whether  rich  or 
poor,  whether  engaged  in  individual  enterprise  or 
united  with  others  in  partnership  or  corporation, 
the  protection  of  the  law  for  their  lawful  business. 
The  danger  in  every  Democracy  has  been,  that  in 
times  of  popular  excitement  this  principle  will  be 
forgotten,  and  that  the  property  acquired  by  indus 
try  and  intelligence  will  be  confiscated,  wholly  or 
in  part,  for  the  benefit  of  the  idle  and  improvident. 


1 8  Daniel  Webster 

With  us  it  is  otherwise.  In  a  word,  the  people  of 
this  Republic  are  sovereign,  but  they  are  a  consti 
tutional  sovereign.  Their  monarchy  is  a  limited 
monarchy.  They  have  freely  chosen  to  limit  their 
own  power  by  Constitutions,  which  they  justly  hold 
sacred.  They  have  entrusted  to  the  courts  of  jus 
tice,  which  the  tradition  of  our  race  leads  us  to 
reverence,  the  unique  power  of  enforcing  the  man 
date  of  the  Constitution,  and  saying  to  the  repre 
sentatives  of  the  people,  whether  in  the  executive 
chair,  or  in  the  Legislature,  "  Thus  far  shalt  thou 
go  and  no  farther." 

The  system  which  has  thus  been  described  has 
become  incorporated  in  the  mental  constitution  of 
the  American  people.  They  seldom  realize  the 
difference  between  this  and  other  so-called  repub 
lics.  But  when  we  come  to  trace  the  history  of 
our  system  and  observe  the  manner  in  which  the 
scheme,  which  looked  well  on  paper,  came  actually 
to  be  worked  out  and  realized  in  action,  we  find 
that  this  was  in  great  measure  due  to  the  argument 
of  Mr.  Webster  in  the  Dartmouth  College  case  and 
to  the  decision  of  the  Supreme  Court  which  crowned 
that  argument. 

The  action  in  which  that  decision  was  rendered 
was  begun  in  the  Supreme  Court  of  New  Hamp 
shire.  The  contention  was  between  the  trustees 
of  Dartmouth  College,  appointed  under  the  provi 
sion  of  its  charter,  and  the  trustees  appointed  by 
act  of  the  Legislature,  which  changed  that  charter 
without  the  consent  of  the  College. 

In  the  argument  before  the  Supreme  Court  of 


Dartmouth  College  Case  19 

New  Hampshire,  reference  was  made  by  the  coun 
sel  for  the  College  to  the  provisions  of  the  Bill  of 
Rights  of  that  State,  which  were  derived  from 
Magna  Charta, 

"  That  no  person  shall  be  deprived  of  his  property,  immu 
nities  or  privileges,  put  out  of  the  protection  of  the  law,  exiled 
or  deprived  of  his  life,  liberty  or  estate,  but  by  judgment  of  his 
peers  or  by  the  law  of  the  land." 

The  Supreme  Court  of  New  Hampshire  decided 
that  the  trustees  had  no  property,  immunities,  lib 
erty  or  privilege  in  the  corporation,  within  the 
scope  of  this  prohibition  in  the  Bill  of  Rights. 
Chief  Justice  Richardson  went  further  and  main 
tained  "that  the  law  of  the  land  meant  any  law 
that  the  Legislature  might  choose  to  enact."  In 
other  words,  he  contended  that  the  object  of  these 
provisions  was  to  protect  the  people  only  against 
the  arbitrary  action  of  the  executive. 

It  will  at  once  be  perceived  that  this  question 
was  fundamental.  The  Court  of  New  Hampshire 
had  said  : 

"  How  a  privilege  can  be  protected  from  the  operation  of  the 
law  of  the  land,  by  a  clause  in  the  Constitution  declaring  that 
it  shall  not  be  taken  away,  but  by  the  law  of  the  land,  is  not 
very  easily  understood." 

The  difficulty  in  the  case  as  it  was  presented  to 
the 'United  States  Supreme  Court  was  this.  That 
Court  had  no  jurisdiction  upon  the  writ  of  error  to 
review  the  decision  of  the  State  Court  upon  its  own 
Constitution.  The  writ  of  error  was  based  solely 
upon  the  alleged  invalidity  of  the  act  of  the  Legis 
lature  of  New  Hampshire  under  the  Constitution 


20  Daniel  Webster 

of  the  United  States.  The  guaranty  of  the  State 
Constitution  was  so  much  more  explicit  that  to 
the  ordinary  lawyer  it  would  appear  a  hopeless 
task  to  sustain  the  contention  under  the  United 
States  Constitution,  when  that  of  the  State  Bill  of 
Rights  had  proved  to  be  inadequate.  It  was  the 
business  of  the  great  lawyer  to  go  below  the  sur 
face  of  his  case  and  to  show  that  the  fundamental 
error  of  the  opinion  of  the  Court  below,  was  equally, 
fatal  to  the  validity  of  the  act  under  either  Consti 
tution.  To  this  end,  and  to  this  end  only,  it  be 
came  important  at  the  outset  of  Mr.  Webster's 
argument  in  the  Supreme  Court  to  use  the  Consti 
tution  of  New  Hampshire  as  an  illustration,  and  to 
show  in  fact  that  the  method  of  reasoning  which 
had  been  adopted  by  the  Court  below,  was  fatal  to 
any  constitutional  guaranty  either  to  person  or  to 
property.  For  if  the  act  of  the  Legislature  was 
in  itself  the  law  of  the  land,  and  its  inscription 
on  the  statute-book  was  the  limit  of  inquiry  as  to 
what  the  law  of  the  land  might  be,  the  restraint 
of  the  Constitution  upon  the  Legislature  would  be 
removed  altogether. 

The  story  is,  that  when  the  Chief  Justice  looked 
at  the  record  his  first  impression  was  adverse  to 
the  plaintiffs  in  error.  But  it  is  related  that  al 
though  he  and  others  of  the  Justices  had  prepared 
to  take  notes  of  the  argument  of  Mr.  Webster,  yet 
it  seemed  so  clear  and  convincing,  as  it  flowed  in 
its  majestic  course,  that  the  paper  remained  blank.1 

1  At  the  time  of  the  argument  of  this  case  printed  briefs  were  not  as  now 
required  to  be  filed. 


Dartmouth  College  Case  21 

After  stating  the  facts  of  the  case,  Mr.  Webster 
referred  to  the  provisions  of  the  State  Constitution. 
He  said  : 

"  I  am  aware  of  the  limits  which  bound  the  jurisdiction  of 
the  Court  in  this  case,  and  that  on  this  record  nothing  can  be 
decided  but  the  single  question,  whether  these  acts  are  re 
pugnant  to  the  Constitution  of  the  United  States.  Yet  it  may 
assist  in  forming  an  opinion  of  their  true  nature  and  char 
acter  to  compare  them  with  those  fundamental  principles 
introduced  into  the  State  governments  for  the  purpose  of 
limiting  the  exercise  of  the  legislative  power,  and  which  the 
Constitution  of  New  Hampshire  expresses  with  great  fulness 
and  accuracy." ' 

He  then  proceeded  to  argue  that  a  corporate 
franchise  was  property.  He  cited  numerous  Eng 
lish  cases  in  which  such  franchise  had  been  recog 
nized  as  property,  and  had  been  held  to  confer 
rights  which  the  courts  were  bound  to  respect.  He 
showed  that  the  word  "liberties"  used  in  Magna 
Charta  included  a  franchise,  and  that  this  franchise 
could  not  be  taken  away  by  arbitrary  government. 
He  showed  that  while  under  the  Roman  law  the 
will  of  the  prince  was  paramount  and  he  even  had 
the  right,  by  special  decree,  to  interpret  statutes  in 
reference  to  pending  cases2 ;  with  us,  to  use  his  own 
language, 

"The  power  of  the  lawgiver  is  limited  and  defined;  the 
judicial  is  regarded  as  a  distinct  independent  power." ' 

1  Webster's  Works,  vol.  v.,  p.  468. 

*  Curiously  enough  in  modern  times  this  right  was  claimed  by  the  Presi 
dent  of  the  Boer  Republic,  and  he  removed  a  Judge  who  ventured  to  dis 
agree  with  him. 

3  Webster's  Works,  vol.  v.,  p.  486. 


22  Daniel  Webster 

"That  the  Legislature  shall  not  judge  by  act,  it  shall  not 
decide  by  act,  it  shall  not  deprive  by  act,  but  it  shall  let  all 
these  things  be  tried  and  judged  by  the  law  of  the  land." 

"  By  the  law  of  the  land  is  most  clearly  intended  the  gen 
eral  law;  a  law  which  hears  before  it  condemns;  which  pro 
ceeds  upon  inquiry,  and  renders  judgment  only  after  trial. 
The  meaning  is,  that  every  citizen  shall  hold  his  life,  liberty, 
property,  and  immunities  under  the  protection  of  the  general 
rules  which  govern  society.  Everything  which  may  pass  under 
the  form  of  an  enactment  is  not  therefore  to  be  considered 
the  law  of  the  land.  If  this  were  so,  acts  of  attainder,  bills  of 
pains  and  penalties,  acts  of  confiscation,  acts  reversing  judg 
ments,  and  acts  directly  transferring  one  man's  estate  to  an 
other,  legislative  judgments,  decrees  and  forfeitures  in  all 
possible  forms,  would  be  the  law  of  the  land."  1  .  .  . 

"  If  then  the  franchise  of  a  corporation  be  property,  this 
property  is  a  creation  of  a  grant.  To  this  grant,  there  are  two 
parties;  the  charter  must  be  accepted,  the  acceptance  of  the 
grant  constitutes  the  contract. 

"  There  are,  in  this  case,  all  the  essential  constituent  parts 
of  a  contract.  There  is  something  to  be  contracted  about, 
there  are  parties,  and  there  are  plain  terms  in  which  the 
agreement  of  the  parties  on  the  subject  of  the  contract  is  ex 
pressed.  There  are  mutual  considerations  and  inducements. 
The  charter  recites,  that  the  founder,  on  his  part,  has  agreed 
to  establish  his  seminary  in  New  Hampshire,  and  to  enlarge  it 
beyond  its  original  design,  among  other  things,  for  the  benefit 
of  that  Province:  and  thereupon  a  charter  is  given  to  him  and 
his  associates,  designated  by  himself,  promising  and  assuring 
to  them,  under  the  plighted  faith  of  the  state,  the  right  of 
governing  the  college,  and  administering  its  concerns  in  the 
manner  provided  in  the  charter.  There  is  a  complete  and 
perfect  grant  to  them  of  all  the  power  of  superintendence, 
visitation,  and  government.  Is  not  this  a  contract  ?  If  lands 
or  money  had  been  granted  to  him  and  his  associates,  for  the 
same  purposes,  such  grant  could  not  be  rescinded.  And  is 
there  any  difference,  in  legal  contemplation,  between  a  grant 

'Webster's  Works,  vol.  v.,  p.  486. 


Dartmouth  College  Case  23 

of  corporate  franchises,  and  a  grant  of  tangible  property  ? 
No  such  difference  is  recognized  in  any  decided  case,  nor 
does  it  exist  in  the  common  apprehension  of  mankind."  l 

Then  Mr.  Webster  proceeded  to  answer  the  argu 
ment,  "  That  abuses  might  arise  in  the  management 
of  such  institutions  which  the  ordinary  courts  of 
law  would  be  unable  to  correct."  His  reply  is  ap 
plicable  in  many  another  case  : 

"  But  this  is  only  another  instance  of  that  habit  of  suppos 
ing  extreme  cases,  and  then  of  reasoning  from  them,  which  is 
the  constant  refuge  of  those  who  are  obliged  to  defend  a 
cause,  which,  upon  its  merits,  is  indefensible." * 

This  was  the  argument.  The  opinion  of  the 
court  was  delivered  at  the  following  Term,  Feb 
ruary,  1819. 

It  is  related  that  the  parties  in  New  Hampshire 
and  their  friends  in  other  States  (for  the  questions 
had  been  perceived  to  be  of  general  importance) 
were  dissatisfied  with  the  argument  in  support  of 
the  validity  of  the  act  which  Mr.  Holmes  of  New 
Hampshire  and  Mr.  Wirt3  had  made,  and  that  Mr. 
Pinkney  had  been  retained  to  apply  for  a  re-argu 
ment,  before  the  opinion  of  the  Court  should  be 
delivered. 

The  story  goes  that  he  was  present  in  court  at 
the  opening  of  the  term,  but  that  Chief  Justice 
Marshall  designedly  went  on  and  delivered  the 
opinion  of  the  Court  without  giving  to  Mr.  Pinkney 

1  Webster's  Works,  vol.  v.,  p.  497. 
'Webster's  Works,  vol.  v.,  p.  498. 

1  An  interesting  unpublished  letter  of  Webster  to  Wirt  on  this  subject 
will  be  found  at  the  end  of  the  chapter. 


24  Daniel  Webster 

the  opportunity  to  make  the  motion.  This  may 
be  one  of  the  myths  that  are  apt  to  cluster  around 
important  decisions.  But  the  tradition  referred  to 
may  be  well  founded.  In  any  case,  the  opponents 
of  the  College  took  nothing  by  their  motion.  The 
opinion  of  the  court  follows  closely  the  argument 
of  Mr.  Webster.  It  states  at  the  outset : 

"  That  the  framers  of  the  Constitution  did  not  intend  to 
restrain  the  States  in  the  regulation  of  their  civil  institutions, 
adopted  for  internal  government,  and  that  the  instrument 
they  have  given  us  is  not  to  be  so  construed,  may  be  ad 
mitted.  The  provision  of  the  constitution  never  has  been 
understood  to  embrace  other  contracts  than  those  that  respect 
property,  or  some  object  of  value,  and  confer  rights  which 
may  be  asserted  in  a  court  of  justice."  l 

The  court  then  proceeded  to  show  that  an  ed 
ucational  institution  founded  by  individuals  and 
endowed  by  them  is  not  a  public  institution.  Its 
trustees  are  not  public  officers,  its  professors  and 
students  are  not  members  of  the  civil  government. 

The  Charter  is  "  a  contract  to  which  the  donors,  the  trus 
tees  and  the  crown  (to  whose  rights  and  obligations  New 
Hampshire  succeeds),  were  the  original  parties.  It  is  a  con 
tract  made  on  a  valuable  consideration.  It  is  a  contract  for 
the  security  and  disposition  of  property.  It  is  a  contract, 
on  the  faith  of  which,  real  and  personal  property  estate  has 
been  conveyed  to  the  corporation.  It  is  then  a  contract 
within  the  letter  of  the  constitution,  and  within  its  spirit 
also,  unless  the  fact  that  the  property  is  invested  by  the 
donors  in  trustees,  for  the  promotion  of  religion  and  educa 
tion,  for  the  benefit  of  persons  who  are  perpetually  changing, 
though  the  objects  remain  the  same,  shall  create  a  particular 

'Dartmouth  College  vs.  Woodward,  4  Wheaton,  518-629. 


Dartmouth  College  Case  25 

exception,  taking  this  case  out  of  the  prohibition  contained 
in  the  constitution."  * 

The  opinion  then  inquired  as  to  the  relation  of 
the  State  of  New  Hampshire  to  the  case,  and  held 
that  this  State  succeeded  to  the  rights  of  the  crown 
in  the  grant  and  that  all  contracts  and  restrictions 
on  property  existing  at  the  time  of  the  Revolution 
were  not  affected  by  it.  The  franchises  which  had 
been  granted  to  Dartmouth  College  remained  the 
same  under  the  new  as  they  were  under  the  old 
government,  subject  to  the  limitations  found  in  the 
Constitution  of  the  State  and  of  the  United  States. 
It  was  then  held  that  the  act  in  question,  if  en 
forced,  would  substantially  change  the  contract, 
and  transfer  the  whole  power  of  government  of 
the  College  from  trustees  appointed  according  to 
the  will  of  the  founder,  to  the  executive  of  New 
Hampshire. 

Mr.  Justice  Story  delivered  an  opinion  to  the 
same  effect,  which  contains  one  passage  of  especial 
interest  at  the  present  time. 

"  It  is  a  principle  of  the  common  law,  which  has  been 
recognized  as  well  in  this  as  in  other  courts,  that  the  division 
of  an  empire  works  no  forfeiture  of  previously  vested  rights 
of  property." 

This  maxim  is  equally  consistent  with  the  com 
mon-sense  of  mankind,  and  the  maxims  of  eternal 
justice. 

In  this  connection  it  should  be  added  that  the 
effect  of  the  reservation  by  the  State  of  the  right 

1  4  Wheaton,  pages  518-644. 


26  Daniel  Webster 

to  alter,  modify  or  repeal  the  charter  of  a  corpora 
tion  (which  has  since  the  Dartmouth  College  de 
cision  been  frequent)  has  often  become  a  subject 
of  consideration  by  the  courts.  The  limit  of  this 
reservation  is  well  stated  by  the  Supreme  Court  of 
the  United  States  in  Miller  vs.  The  State1 : 

"  Power  to  legislate,  founded  upon  such  a  reservation  in 
the  charter  of  a  private  corporation,  is  certainly  not  without 
limit,  and  it  may  well  be  admitted  that  it  cannot  be  exercised 
to  take  away  or  destroy  rights  acquired  by  virtue  of  such  a 
charter,  and  which  by  a  legitimate  use  of  the  powers  granted 
have  become  vested  in  the  corporation." 

In  People  vs.  O'Brien2  it  was  held  by  the  New 
York  Court  of  Appeals  : 

"  That  a  franchise  to  construct  and  operate  a  railroad,  was 
property,  and  transferable  as  such.  That  while  the  Legisla 
ture  under  the  reservation  under  the  constitution  in  the  State  of 
New  York  might  repeal  and  dissolve  the  corporation,  it  could 
not  deprive  the  creditors  and  stockholders  of  the  corporation  of 
their  interest  in  this  franchise,  and  that  therefore  this  franchise 
would  pass  to  a  receiver  of  the  corporation." 

A  curious  illustration  of  Mr.  Webster's  argument, 
that  if  abuses  were  found  to  exist  in  corporate 
management  the  Legislature  had  ample  power  to 
deal  with  them,  is  to  be  found  in  the  legislation  of 
New  York  in  reference  to  taxes  upon  corporate 
franchises.3  No  doubt  in  many  cases  such  fran 
chises  have  been  granted  upon  an  inadequate 

1  15  Wallace,  478. 
8  in  N.  Y.,  i. 

8  People  ex  rel  Metropolitan  St.  R.  Co.  vs.  Tax  Commissioners,  174  N. 
Y.,  417. 


Dartmouth  College  Case  27 

consideration.  It  is  obvious  that  the  smaller  the 
consideration  for  a  particular  franchise,  the  greater 
is  the  value  to  the  corporation  possessing  it. 
Therefore,  the  Legislature,  by  authorizing  the  tax 
ing  a  franchise  at  its  full  value,  can  redress  the 
injustice  of  the  original  grant. 

In  closing  this  chapter,  two  accounts  of  the  argu 
ment  in  this  case,  hitherto  unpublished,  are  given. 
The  first  is  from  a  manuscript  of  Judge  Story  in 
the  Congressional  Library  at  Washington,  appar 
ently  prepared  as  a  review  of  a  volume  of  Webster's 
speeches,  published  in  1830.  The  second  is  from 
a  letter  of  Webster  to  Wirt,  which  the  author  has 
received  from  a  descendant  of  the  great  Attorney- 
General. 


"  It  was  in  the  year  1818  that  an  occasion  occurred,  which 
is  as  memorable  as  any  in  the  professional  life  of  Mr.  Webster, 
and  brought  him  before  the  nation,  if  not  in  a  new  light,  at 
least  in  a  more  striking  light  than  any  in  which  he  had  hitherto 
been  seen.  We  allude  to  his  argument  in  the  case  of  the 
Trustees  of  Dartmouth  College  vs.  Woodward,  before  the 
Supreme  Court  of  the  U.  S.  at  the  Jan'y  Term  of  that  year, 
which  is  reported  in  the  volume  now  before  us  (pp.  no  et  seq.). 
That  case  was  in  itself  full  of  deepest  interest,  and  as  impor 
tant  in  its  principles  as  any  which  belongs  to  our  judicial 
annals.  Few  cases  are  better  known  to  the  public;  few  are 
of  more  varied  and  general  application;  few  at  the  time  at 
tracted  a  more  intense  attention,  and  probably  few  will  retain, 
so  long  as  law  continues  to  be  a  science,  a  more  permanent 
and  enduring  celebrity.  It  was  originally  commenced  in  the 
State  Court  of  New  Hampshire,  and  having  received  an  ad 
judication  there  in  the  highest  State  tribunal  unfavorable  to  the 
College,  it  was  carried  by  a  writ  of  error  for  a  final  decision  to 
the  Supreme  Court.  The  pecuniary,  and  personal,  and  political 


28  Daniel  Webster 

interests  in  it  were  of  no  small  magnitude.  But  the  extent 
to  which  the  principles  involved  in  it  touched  the  rights  of 
property,  private  and  charitable,  as  well  as  the  extent  to  which 
a  claim  to  exercise  legislation  over  literary  and  other  corpora 
tions  on  the  part  of  state  sovereignty  could  be  maintained  with 
reference  to  the  prohibitions  of  the  constitution  of  the  United 
States  gave  it  an  importance  so  paramount,  that  every  other 
consideration  seemed  at  the  moment  to  be  of  no  significance. 
The  cause  had  been  argued  with  uncommon  ability  in  the  state 
court,  and  a  judgment  supported  with  great  ingenuity  and 
strength  had  there  been  pronounced,  which  gave  to  the  State 
Legislature  an  absolute  discretionary  control  over  all  the  cor 
porate  rights  of  the  college.  In  the  state  court  the  cause  had 
been  argued  by  Mr.  Webster  in  conjunction  with  very  eminent 
associates — Mr.  Jeremiah  Smith,  formerly  Chief  Justice  of  the 
State,  (clarum  et  venerabile  nomen)  a  man  whose  depth  of  re 
search  and  sagacity  had  made  him  equal  to  the  labors  of  any 
station,  and  Mr.  Jeremiah  Mason,  a  man  of  such  rare  en 
dowments  and  acuteness,  that  it  is  not  easy  to  pronounce  who 
is  his  superior.  Yet  in  the  presence  of  such  associates  Mr. 
Webster  (who  was  much  their  junior)  was  admitted  by  the 
common  consent  of  the  bar  to  have  made  a  speech  in  the  State 
Tribunal  not  unworthy  to  the  place  by  the  side  of  those  of  his 
colleagues.  The  argument  was  supposed  to  have  been  ex 
hausted;  and  it  was  thought  scarcely  possible  to  give  it  in 
point  of  novelty  or  force  an  aspect  more  imposing  than  it  had 
then  assumed.  And  for  Mr.  Webster  not  to  surpass  his  former 
exertions  upon  a  re-argument,  was,  considering  the  excited 
state  of  the  public  mind,  to  hazard  everything  but  the  fruits 
of  victory.  Under  such  circumstances,  it  was  not  unnatural  to 
suppose  that  Mr.  Webster  should  have  felt  the  discouraging 
influence  of  his  prior  fame  travelling  with  him  to  Washington. 
He  was  not  indeed  a  novus  hospes  in  the  Supreme  Court,  hav 
ing  (if  our  memory  does  not  deceive  us)  argued,  some  years 
before,  one  or  two  causes  there,  which  did  not  however  bring 
into  play  the  full  powers  of  his  mind  (The  Grotius,  9  Cranch 
R.,  368,  was  argued  by  him  in  1815). 

"  Public  expectation  was  keenly  alive;  and  accordingly  on 


Dartmouth  College  Case  29 

the  day  set  for  the  argument  a  large  assemblage  of  ladies,  of 
eminent  lawyers,  and  of  distinguished  statesmen,  filled  the 
Court  Room.  Mr.  Webster  opened  the  cause  for  the  plfs  in 
error,  giving  tQ  his  accomplished  colleague  Mr.  Hopkinson 
(now  Judge  Hopkinson)  the  close.  Mr.  Holmes  and  Mr. 
Wirt  were  the  opposing  counsel  and  in  all  respects  adversaries 
worthy  of  the  cause.  The  printed  speech  of  Mr.  Webster  is 
now  before  the  public ;  and  it  may  be  thought  wholly  unneces 
sary  to  describe  its  character.1  But  it  is  impossible  in  any 
written  speech  to  give  the  form  and  impress,  the  manner  and 
the  expression,  glowing  zeal,  the  brilliant  terms  of  diction,  the 
spontaneous  bursts  of  eloquence,  the  polished  language  of  re 
buke,  'severe  in  beauty,'  the  sparkling  eye,  the  quivering  lip, 
the  speaking  gesture,  the  ever  changing,  and  ever  moving  tones 
of  the  voice,  which  add  such  strength  and  pathos,  and  capti 
vating  enchantment,  to  the  orator  as  his  words  flow  rapidly  on 
during  actual  delivery.  It  is  then  that  we  hear,  and  see  and 
feel  the  living  and  present  power  of  his  thoughts.  It  is  then 
that  he  terrifies  us -by  his  instant  appeals,  or  melts  us  by  his 
touches  of  nature,  and  draws  us  down  the  willing  slaves  of  his 
reasoning,  or  bears  us  aloft  to  contemplations  which  seem  to 
reach  the  flaming  boundaries  of  time  and  space.  Those,  who 
were  present  at  the  argument  of  which  we  are  speaking,  will 
readily  understand  our  meaning.  They  cannot  but  remember 
with  what  decorous  deference  he  began  to  unfold  the  topics  of 
his  arguments,  and  the  lucid  order  and  elegant  arrangement, 
by  which  each  progressive  position  sustained  and  illustrated 
every  other.  He  began  by  unfolding  the  facts  in  that  brief 
but  exact  manner,  for  which  he  is  so  remarkable ;  and  arriving 
at  the  points,  for  which  he  meant  to  contend,  he  first  presented 
them  in  their  general  bearing  and  aspect;  and  then  proceeding 
to  the  more  minute  analysis,  he  brought  out  into  singular 
felicity  and  clearness  all  the  various  learning,  from  judicial 
authorities,  from  historical  archives,  from  parliamentary  de 
bates,  from  elementary  writers,  which  could  illustrate  and 
fortify  his  grounds.  As  he  went  on  he  kindled  into  more 

1  The  peroration  of  this  argument  as  reported  by  Chauncey  A.  Goodrich 
is  printed  in  vol.  xv.,  Webster's  Writings  and  Speeches  p.  9. 


30  Daniel  Webster 

energetic  action,  and  if  one  may  so  say,  he  scintillated  at  every 
step.  There  was  an  earnestness  of  manner,  and  a  depth  of 
research,  and  a  potency  of  phrase,  •  which  at  once  convinced 
you  that  his  whole  soul  was  in  the  cause;  and  that  he  had 
meditated  over  it  in  the  deep  silence  of  the  night  and  studied 
it  in  the  broad  sunshine  of  the  day.  At  times  his  voice  rose 
almost  into  startling  impetuosity.  It  was  the  struggle  of  the 
giant  to  relieve  the  incumbent  pressure  of  his  thoughts,  to  de 
liver  over  the  strong  workings  of  his  soul,  and  to  uproot  the 
very  foundations  of  the  opposing  argument.  There  was  breath 
less  silence  in  the  audience.  Even  the  eagerness  to  hear 
seemed  at  times  checked  by  a  present  sense  of  overwhelming 
reasoning.  It  was  a  relief  even  to  gain  in  his  momentary 
pauses  some  short  interval  of  repose  from  the  intense  stretch 
of  thought,  by  which  the  mind  was  irresistibly  driven.  And 
when  he  came  to  his  peroration,  there  was  in  his  whole  air  and 
manner,  in  the  fiery  flashings  of  his  eye,  the  darkness  of  his 
contracted  brow,  the  sudden  and  flying  flushes  of  his  cheeks, 
the  quivering  and  scarcely  manageable  movements  of  his  lips, 
in  the  deep  guttural  tones  of  his  voice,  in  the  struggle  to  sup 
press  his  own  emotions,  in  the  almost  convulsive  clenchings  of 
his  hands  without  a  seeming  consciousness  of  the  act,  there 
was  in  these  things  what  gave  to  his  oratory  an  almost  super 
human  influence.  There  was  a  solemn  grandeur  in  every 
thought,  mixed  up  with  such  pathetic  tenderness  and  refine 
ment,  such  beautiful  allusions  to  the  past,  the  present,  and  the 
future,  such  a  scorn  of  artifice,  and  fervor,  such  an  appeal  to 
all  the  moral  and  religious  feelings  of  many,  to  the  lover  of 
learning  and  literature,  to  the  persuasive  precepts  of  the  law, 
to  the  reverence  for  justice,  to  all  that  can  exalt  the  under 
standing  and  sensify  the  heart,  that  it  was  impossible  to  listen 
without  increasing  astonishment  at  the  profound  reaches  of  the 
human  intellect,  and  without  a  deep  sense  of  the  divinity  that 
stirs  within  us.  There  was  a  painful  anxiety  towards  the  close. 
The  whole  audience  had  been  wrought  up  to  the  highest  excite 
ment;  many  were  dissolved  in  tears;  many  betrayed  the  most 
agitating  mental  struggles ;  many  were  sinking  under  exhaust 
ing  efforts  to  conceal  their  own  emotion.  When  Mr.  Webster 


Dartmouth  College  Case  31 

ceased  to  speak,  it  was  some  minutes  before  any  one  seemed 
inclined  to  break  the  silence.  The  whole  seemed  but  an 
agonizing  dream,  from  which  the  audience  was  slowly  and 
almost  unconsciously  awakening. 

"Such  were  the  circumstances  under  which  Webster  de 
livered  his  argument  in  the  Dartmouth  College  case.  The 
printed  argument  prepared  months  afterwards  in  the  cold  re 
tirement  of  the  closet,  and  with  no  assistance  except  the  im 
perfect  notes,  and  the  faded  memory  of  the  speaker  himself, 
gives  no  adequate  idea  of  the  eloquence,  or  sudden  blazes  of 
thought  with  which  it  abounded.  It  is  true  that  the  outline 
of  the  legal  reasoning  and  authorities  is  there;  and  the  general 
course  of  the  topics  is  pursued  with  sufficient  fidelity  and  ex 
actness.  But  we  miss  everything  that  was  peculiar  to  the  scene 
and  the  occasion.  We  miss  the  spirit,  the  fervor,  and  the 
masculine  earnestness,  which  gave  to  the  very  words  a  potency, 
and  emphasis,  before  unknown. 

"  This  argument  was  decisive  of  the  future  professional 
reputation  of  Mr.  Webster.  It  elevated  him  at  once  to  the 
first  rank,  and  to  the  foremost  competitors  in  that  rank;  the 
post  which  he  has  ever  since  maintained  with  increasing  fame, 
and  with  an  unquestioned  title.  It  would  not  perhaps,  be  too 
much  to  say,  that  it  gave  a  new  direction  to  his  own  hopes  and 
wishes.  It  probably  led  to  the  measure  which  he  soon  after 
wards  adopted  of  transferring  himself  to  a  wider  sphere  of 
professional  exertion;  and  it  gave  to  the  metropolis  of  Massa 
chusetts  one  whom  she  has  been  proud  to  honor  with  her  con 
fidence,  and  satisfied  to  claim  as  her  advocate.  It  should 
perhaps  be  added  for  the  benefit  of  distant  readers,  that  the 
judgment  of  the  state  court  was  reversed  in  1819,  and  the 
college  reinstated  in  its  original  rights  under  its  former  charter. 

"  From  this  period,  for  it  may  be  as  well  in  this  connection 
to  follow  out  what  we  have  to  say  in  respect  to  Mr.  Webster's 
professional  career,  his  attendance  on  the  Supreme  Court  was 
almost  constantly  secured  by  retainers  in  the  most  important 
causes.  Up  to  this  very  hour  in  which  we  write,  the  circle  of 
his  business  of  this  sort  has  been  continually  enlarging;  and 
has  never  been  exceeded,  if  it  has  been  equalled  by  that  of  any 


32  Daniel  Webster 

other  lawyer  in  the  national  forum.  He  naturally  succeeded 
to  that  place  at  the  bar  which  was  left  vacant  by  the  death  of 
that  very  eminent  lawyer,  the  late  William  Pinkney,  in  1822." 

This  ends  that  portion  of  the  manuscript  which 
refers  to  the  Dartmouth  College  argument.  The 
following  is  Webster's  letter  to  Wirt : 

"  BOSTON,  April  sth,  1818. 
"SiR— 

"  I  returned  recently  from  a  little  visit  into  N.  Hampshire, 
where  I  learned  the  existence  of  a  report  which  represented 
me  as  having  said  that  the  deficiencies  in  my  own  argument, 
in  the  cause  about  Dartm'o  College  were  supplied  by  your 
argument. 

' '  I  hope  you  suppose  me  incapable  of  talking  so  ridiculously. 
I  should  have  taken  no  notice  of  the  silly  falsehood,  had  I  not 
learned  that  it  had  been  made  the  subject  of  a  communication 
to  you.  This  induced  me  to  write  to  you,  for  the  purpose  of 
giving  it  a  direct  and  emphatic  contradiction.  No  man  ever 
heard  such  a  remark  from  me,  or  any  remark  in  any  degree 
like  it.  I  am  sure,  if  our  professional  labors  should  bring  us 
often  together,  I  shall  find  enough  to  do  to  answer  your  argu 
ments,  and  I  am  equally  sure  that  I  shall  have  no  inclination 
to  misrepresent  them. 

"  1  have,  of  course,  been  often  asked  about  the  argument 
of  the  Atty.  Gen'l,  in  the  case  alluded  to.  I  have  spoken 
of  it  frankly,  and  on  many  occasions  and  to  various  people. 
It  is  the  universal  opinion,  in  this  quarter,  among  all  those  who 
have  inquired  or  heard  about  the  cause,  that  that  argument 
was  a  full,  able,  and  most  eloquent  exposition  of  the  rights  of 
the  Defendant.  I  must  leave  it  to  you  to  infer,  whether  this 
general  sentiment  is  in  concurrence  with  my  own  uniform  dec 
larations  on  the  subject,  or  whether  it  contradicts  them.  I 
will  add,  that  in  my  opinion,  no  future  discussion  of  the  ques 
tions  involved  in  the  cause,  either  at  the  Bar,  or  on  the  Bench, 
will  bring  forth,  on  the  part  of  the  Defendant,  any  important 


Dartmouth  College  Case  33 

idea  which  was  not  argued,  expanded,  and  pressed,  in  the 
argument  alluded  to. 

"  I  beg  your  pardon  for  the  trouble  of  this  letter,  and  hope 
you  will  ascribe  it  to  my  desire  of  not  being  misrepresented  to 
you.  I  hope  also  you  will  think  me  not  quite  weak  enough 
to  depreciate  the  power  of  an  adversary.  If  conquered,  this 
would  but  increase  the  mortification  of  defeat.  If  conquering, 
it  would  take  away  the  glory  of  victory. 

"  In  victory,  or  defeat,  none  but  a  fool  could  boast  that  he 
was  warring,  not  with  giants,  but  with  pigmies. 

"  Very  truly, 

"  Yr.  Ob't  serv't, 

"  DAN'L  WEBSTER. 
"WILLIAM  WIRT,  Esquire, 

"Attorney  General  of  U.  S., 
"Washington."  * 

1  There  are  many  other  indications  in  Webster's  correspondence  of  his 
cordial  recognition  and  appreciation  of  the  ability  of  his  brethren  of  the 
bar.  See  his  letter  to  Chief  Justice  Smith,  January  9,  1818,  Private  Cor 
respondence,  vol.  i.,  p.  268,  and  another  letter  describing  the  argument  of 
this  case,  ibid.,  p.  276. 
3 


CHAPTER  IV 

SUPREMACY  OF  THE  NATIONAL  GOVERNMENT POWER 

TO  CHARTER  A  BANK MCCULLOCH  VS.  MARYLAND 

THE  next  case  of  great  importance  in  which  Mr. 
Webster  appeared  before  the  Supreme  Court  was 
McCulloch  against  the  State  of  Maryland.1  This 
case  involved  the  consideration  of  the  character  of 
the  Constitution.  The  question  from  the  first  had 
been  whether  it  was  to  be  construed  liberally  or 
strictly ;  whether  it  was  the  duty  of  a  court,  and 
indeed  of  all  branches  of  the  government,  to  deal 
with  it  as  an  instrument  containing  general  grants 
of  power  for  the  purpose  of  endowing  the  new 
central  government  created  by  it  with  ample  au 
thority  for  all  its  needs,  or  whether  it  should 
be  considered  as  a  bargain  between  independent 
states,  in  which  each  had  surrendered  somewhat 
reluctantly  a  certain  portion  of  power,  but  desired 
to  retain  as  much  as  possible,  and  was,  therefore, 
unwilling  to  admit  that  anything,  not  strictly  nomi 
nated  in  the  bond,  was  included  in  it. 

At  the  second  session  of  the  first  Congress  2  a 
National  Bank  was  chartered.  The  act  was  ap- 

!  Reported  4  Wheaton,  316. 
'Act  of  February  25,  1791,  c.  84. 

34 


United  States  National  Bank  35 

proved  by  Washington.      The  charter  expired  in 
1811,  and  was  not  renewed. 

During  the  War  of  1812,  the  financial  condition 
of  the  country  became  such  that  a  central  bank 
was  a  public  necessity.  Mr.  Webster  was  then 
member  of  the  House  of  Representatives,  and  in 
sisted  strenuously  that  any  bank  which  might  be 
incorporated  should  be  incorporated  on  sound 
financial  principles,  should  be  required  to  redeem 
its  notes  in  specie,  and  should  not  be  under  obliga 
tion  to  loan  fixed  amounts  in  paper  to  The  govern 
ment  To  use  his  own  language  in  his  speech  ii 
the  House  of  Representatives,  January  2,  1815* : 

"  Something  must  be  discovered  which  has  hitherto  escaped 
the  observation  of  mankind,  before  you  can  give  to  paper  in 
tended  for  circulation  the  value  of  a  metallic  currency,  any 
longer  than  it  represents  that  currency,  and  is  convertible 
into  it,  at  the  will  of  the  holder.  The  paper  of  this  bank,  if 
you  make  it,  will  be  depreciated  for  the  same  reason  that  the 
paper  of  other  banks  that  have  gone  before  it,  and  of  those 
which  now  exist  around  us,  has  been  depreciated,  because  it 
is  not  to  pay  specie  for  its  notes." 

The  bill  was  lost,  and  another  bill  introduced  in 
the  following  Congress  was  amended  so  as  to 
strike  out  the  authority  to  the  Bank  to  suspend 
specie  payments.  As  amended,  it  passed,  and  thus, 
in  1816,  the  second  Bank  of  the  United  States 
came  into  being.  This  Bank  was  authorized  to 
establish  branches  in  the  different  States,  and  it 
did  establish  a  branch  in  Baltimore  in  1817. 

The  State  banks,  some  of  which  had  been  in- 

1  Webster's  Works,  vol.  iii.,  p.  43. 


36  Daniel  Webster 

corporated  after  the  refusal  of  Congress  to  extend 
the  charter  of  the  first  National  Bank,  found  the 
competition  of  the  new  institution  embarrassing. 
Accordingly,  in  February,  1818,  the  State  of  Mary 
land  passed  an  act  to  tax  all  banks  and  branches  of 
banks  which  were  not  chartered  by  that  State,  but 
did  business  within  its  borders.  The  tax  was  im 
posed  in  the  form  of  stamps,  which  banks  subject 
to  its  provisions  were  required  to  impress  upon 
commercial  obligations  issued  within  the  State  of 
Maryland.  McCulloch,  the  cashier  of  the  Balti 
more  Branch  Bank,  was  indicted  and  convicted  for 
a  violation  of  the  provisions  of  the  Maryland  law. 
Its  validity  was  sustained  by  the  Maryland  courts, 
and  a  writ  of  error  was  sued  out  from  the  Supreme 
Court  of  the  United  States.  The  case  was  argued 
by  Webster,  Wirt  and  Pinkney  for  the  plaintiff  in 
error,  and  by  Hopkinson,  Jones  and  Martin  for  the 
State.  Martin  was  one  of  the  most  learned  law 
yers  of  his  time,  and  Wirt  and  Pinkney  two  of  the 
most  eloquent.  Hopkinson  had  been  associated 
with  Webster  in  the  Dartmouth  College  case. 

It  was  felt  that  this  new  cause  was  of  impor 
tance  equal  to  the  last  named.  The  discussion  at 
the  bar  continued  from  the  twenty-second  to  the 
twenty-seventh  of  February,  and  from  the  first  to 
the  third  of  March.  Webster's  argument  is  not 
contained  in  the  first  edition  of  his  collected  works, 
but  an  abstract  of  it  is  to  be  found  in  Wheaton's 
Reports,  and  it  is  now  reprinted  in  the  national 
edition  of  I9O3.1  It  contains  the  statement  of  the 

1  Webster's  Writings  and  Speeches,  vol.  xv.,  p.  261. 


United  States  National  Bank  37 

famous  proposition  that  "  an   unlimited  power  to 
tax  involves  necessarily  a  power  to  destroy." 

To  use  Mr.  Webster's  phrase  in  his  speech  in 
the  Senate  on  an  amendment  to  the  bill  for  renew 
ing  the  charter  of  the  Bank  of  the  United  States'2 : 

"  A  power  of  taxation  without  fixed  limits  and  without 
guards,  is  a  power  to  embarrass,  a  power  to  oppress,  a 
power  to  expel,  a  power  to  destroy." 

In  support  of  the  proposition  that  individual 
States  had  no  power  to  tax  an  instrument  of  the 
national  government,  it  was  necessary  to  maintain, 
and  Mr.  Webster  did  maintain,  that  the  powers  of 
the  separate  States  were  not  only  limited  by  the 
express  prohibitions  of  the  Constitution,  but  that 
such  limitation  could  be  inferred,  by  fair  implica 
tion,  from  the  grant  of  powers  to  the  general  gov 
ernment  which  were  inconsistent  with  the  exercise 
of  like  authority  by  the  States.  It  will  be  seen  at 
once  that  this  proposition  was  of  the  very  first  im 
portance.  For  if  it  was  within  the  lawful  authority 
of  the  separate  States,  by  adverse  legislation,  to 
limit,  check  and  harass  the  exercise  by  the  general 
government  of  the  powers  granted  to  it,  the  latter 
would  be  shorn  of  the  authority  necessary  to  its 
complete  efficiency. 

At  first  sight  it  would  seem  reasonably  clear  that 
an  institution  doing  business  in  a  State,  and  receiv 
ing  the  benefit  of  protection  from  the  State  gov 
ernment,  should  directly  or  indirectly  pay  its  fair 

1  Webster's  Writings  and  Speeches,  vol.  xv.,  p.  266. 
*  Webster's  Works,  vol.  iii.,  p.  408. 


38  Daniel  Webster 

proportion  of  the  expenses  of  that  government. 
As  matter  of  equity,  this  is  undoubtedly  true,  and 
when  the  act  for  the  incorporation  of  national 
banks  was  passed  during  the  Civil  War  in  1862, 
the  consent  of  Congress  was  given  to  the  taxation 
of  the  interest  of  the  stockholders  in  the  stock 
of  each  bank  by  the  State  in  which  it  was  located, 
provided  such  taxation  was  not  at  a  greater  rate 
than  that  imposed  upon  capital  invested  in  other 
financial  enterprises. 

A  proposition  to  authorize  a  tax  upon  the 
Bank  itself  or  its  branches  was  considered  in  Con 
gress  when  the  charter  of  the  second  Bank  of 
the  United  States  was  before  it  for  consideration. 
This  was  successfully  opposed  by  Mr.  Webster, 
but  he  conceded  that  the  interest  of  stockholders 
might  properly  be  taxed.  To  use  his  own  words  :  * 

"  Every  stockholder  in  the  Bank  is  liable  to  be  taxed  for  his 
property  therein  by  the  State  of  which  he  is  a  citizen." 

The  need  of  such  a  bank  at  that  time  was  so 
pressing,  and  the  disadvantages  under  which  the 
country  was  suffering  from  the  depreciation  of 
local  issues  of  circulating  notes  and  the  discounts 
to  which  they  were  subject  at  even  a  small  distance 
from  the  place  of  issue  were  so  great,  that  Congress 
was  naturally  reluctant  to  impose  upon  the  new  in 
stitution  which  it  was  creating,  any  burden  that 
was  not  absolutely  necessary.  But  it  was  of  the 
first  importance  that  the  control  over  this  subject 
should  remain  in  the  hands  of  Congress.  If  a 

1  Webster's  Works,  vol.  iii.,  p.  411. 


United  States  National  Bank  39 

State  might  tax  a  bank  incorporated  by  Congress, 
why  might  it  not  tax  a  post-office  building,  or  a 
federal  court-house  ?  If  it  had  the  general  power 
to  tax  property  used  for  federal  purposes,  it  could 
exercise  that  power  to  discriminate  against  the  pro 
perty  of  the  federal  government.  I  n  short,  when  the 
matter  is  carefully  considered,  it  will  appear  that  the 
whole  character  of  the  general  government  would 
have  been  altered,  if  the  decision  in  M'Culloch 
against  State  of  Maryland  had  been  the  reverse 
of  what  it  was.  It  would  have  left  the  general  i/ 
government,  what  Calhoun  afterwards  claimed  it 
to  be,  a  mere  agent  of  the  State  governments  for 
a  few  specifically  defined  purposes,  subject  prac 
tically  in  most,  if  not  all,  respects  to  the  control 
of  its  principals.  As  these  principals  were  many, 
and  often  did  not  agree,  such  a  conclusion  would 
have  left  the  Constitution  a  rope  of  sand.  Cfhe 
question  on  the  power  of  taxation  was  therefore 
really  of  much  greater  importance  than  the  other 
which  was  also  argued  in  the  case,  which  was 
whether  the  Constitution  conferred  on  Congress, 
by  implication,  the  power  to  charter  a  bank/ 

Still,  on  the  latter  point  also,  the  principle  of 
construction  which  Mr.  Webster  advocated  was 
fundamental.  He  states  it  thus 1 : 

"  Congress  by  the  Constitution  is  invested  with  certain  pow 
ers;  and  as  to  the  objects  and  within  the  scope  of  these  powers, 
it  is  sovereign.  Even  without  the  aid  of  the  general  clause  in 
the  constitution  empowering  Congress  to  pass  all  necessary 
and  proper  laws  for  carrying  its  powers  into  execution,  the 

'4  Wheaton,  p.  323  ;  Webster's  Writings  and  Speeches,  vol.  xv.,  p.  262. 


40  Daniel  Webster 

grant  of  powers  itself  necessarily  implies  a  grant  of  all  usual 
and  suitable  means  for  the  execution  of  the  powers  granted." 

His  argument  on  this  occasion  is  better  pre 
served  in  his  speech  delivered  July  n,  1832,  upon 
Jackson's  veto  of  the  bill  to  extend  the  charter  of 
the  Bank  of  the  United  States. 

"According  to  that  mode  of  construing  the  Constitution 
which  was  adopted  by  Congress  in  1791,  and  approved  by 
Washington,  and  which  was  sanctioned  by  the  judgment  of  the 
Supreme  Court,  and  affirmed  by  the  practice  of  nearly  forty 
years,  the  question  upon  the  constitutionality  of  the  bank,  in 
volve  two  inquiries.  First,  whether  a  bank,  in  its  general 
character  and  with  regard  to  the  general  objects  with  which 
banks  are  usually  connected  be,  in  itself,  a  fit  means,  a  suitable 
instrument  to  carry  into  effect  the  powers  granted  to  the  gov 
ernment.  If  it  be  so,  then  the  second,  and  the  only  other  ques 
tion  is,  whether  the  powers  given  in  a  particular  charter  are 
appropriate  for  a  bank.  If  they  are  powers  which  are  appro 
priate  for  a  bank,  powers  which  Congress  may  fairly  consider 
to  be  useful  to  the  bank  or  the  country,  then  Congress  may 
confer  these  powers;  because  the  discretion  to  be  exercised  in 
framing  the  constitution  of  the  bank  belongs  to  Congress. 
One  man  may  think  the  granted  powers  not  indispensable  to  the 
particular  bank;  another  may  suppose  them  injudicious  or  in 
jurious;  a  third  may  imagine  that  other  powers,  if  granted  in 
their  stead,  would  be  more  beneficial;  but  all  these  are  matters 
of  expediency,  about  which  men  may  differ;  and  the  power  of 
deciding  upon  them  belongs  to  Congress." 

"  The  truth  is,  Mr.  President,  that  if  the  general  object,  the 
subject-matter,  properly  belongs  to  Congress,  all  its  incidents 
belong  to  Congress  also.  If  Congress  is  to  establish  post- 
offices  and  post-roads,  it  may,  for  that  end,  adopt  one  set  of 
regulations  or  another;  and  either  would  be  constitutional. 
So  the  details  of  one  bank  are  as  constitutional  as  those  of  an- 

1  Webster's  Works,  vol.  iii.,  p.  437. 


United  States  National  Bank  41 

other,  if  they  are  confined  fairly  and  honestly  to  the  purpose 
of  organizing  the  institution,  and  rendering  it  useful.  One 
bank  is  as  constitutional  as  another  bank.  If  Congress  pos 
sesses  the  power  to  make  a  bank,  it  possesses  the  power  to 
make  it  efficient,  and  competent  to  produce  the  good  expected 
from  it.  It  may  clothe  it  with  all  such  power  and  privileges 
not  otherwise  inconsistent  with  the  Constitution,  as  may  be 
necessary  in  its  own  judgment  to  make  it  what  government 
deems  it  should  be.  It  may  confer  on  it  such  immunities  as 
may  induce  individuals  to  become  stockholders,  and  to  furnish 
the  capital;  and  since  the  extent  of  these  immunities  and  privi 
leges  is  matter  of  discretion,  and  matter  of  opinion,  Congress 
only  can  decide  it,  because  Congress  alone  can  frame  or  grant 
the  Charter."  ' 

The  case  was  so  fully  argued  that  the  Court  no 
doubt  disposed  of  it  immediately  upon  the  conclu 
sion  of  the  argument.  Four  days  after  this,  and 
on  the  7th  of  March,  1819,  the  opinion  of  the  Court 
was  delivered  by  Chief  Justice  Marshall.  Justices 
Washington,  Johnson,  Brockholst  Livingston,  Du- 
val  and  Story  concurred.  The  decision  follows 
very  closely  Mr.  Webster's  argument.  In  the  re 
port  the  latter  is  stated  concisely.  The  opinion 
elaborates.  After  pointing  out  that  the  Constitu 
tion  was  adopted  by  the  people  and  not  by  the 
State  legislatures,  and  that  therefore  it  could  not 
be  said  that  the  national  government  was  the 
creature  of  the  States,  but  that  on  the  contrary  it 
was  the  child  of  the  people,  the  Chief  Justice  pro 
ceeds  (p.  405) : 

"The  government  of  the  Union,  though  limited  in  its  powers, 
is  supreme  within  its  sphere  of  action.     This  would  seem  to 
result  necessarily  from  its  nature.     It  is  the  government  of  all;  • 
1  Webster's  Works,  vol.  iii.,  p.  441. 


42  Daniel  Webster 

its  powers  are  delegated  by  all;  it  represents  all,  and  acts  for 
all." 

And  then  the  Chief  Justice  quotes  the  section 
on  the  supremacy  of  the  Constitution,  and  proceeds 
(p.  409)  : 

"  The  government  which  has  a  right  to  do  an  act,  and  has 
imposed  on  it  the  duty  of  performing  that  act,  must,  accord 
ing  to  the  dictates  of  reason,  be  allowed  to  select  the  means." 

Again,  in  considering  the  meaning  of  the  word 
"necessary,"  he  says  (p.  419)  : 

"This  word,  then,  like  others,  is  used  in  various  senses; 
and,  in  its  construction,  the  subject,  the  context,  the  intention 
of  the  person  using  them,  are  all  to  be  taken  into  view." 

Again  (at  p.  421)  he  proceeds : 

"We  admit,  as  all  must  admit,  that  the  powers  of  the 
government  are  limited,  and  that  its  limits  are  not  to  be 
transcended.  But  we  think  the  sound  construction  of  the 
constitution  must  allow  to  the  national  legislature  that  discre 
tion,  with  respect  to  the  means  by  which  the  powers  it  confers 
are  to  be  carried  into  execution,  which  will  enable  that  body 
to  perform  the  high  duties  assigned  to  it,  in  the  manner  most 
beneficial  to  the  people.  '  Let  the  end  be  legitimate,  let  it  be 
within  the  scope  of  the  Constitution,  and  all  means  which  are 
appropriate,  which  are  plainly  adapted  to  that  end,  which  are 
not  prohibited,  but  consist  with  the  letter  and  spirit  of  the 
Constitution,  are  constitutional."/ 

Having  thus  disposed  of  the  arguments  against 
the  constitutionality  of  the  charter,  he  deals  with 
the  question  as  to  the  power  of  the  State,  and 
concludes  (p.  431)  : 

"  That  the  power  to  tax  involves  the  power  to  destroy;  that 


United  States  National  Bank  43 

the  power  to  destroy  may  defeat  and  render  useless  the  power 
to  create;  that  there  is  a  plain  repugnance,  in  conferring  on 
one  government  a  power  to  control  the  constitutional  measures 
of  another,  which  other,  with  respect  to  those  very  measures, 
is  declared  to  be  supreme  over  that  which  exerts  the  control, 
are  propositions  not  to  be  denied."  l 

The  greater  part  of  the  banking  business  of  the 
country  is  now  carried  on  by  national  banks.  For 
over  forty  years  they  have  not  only  done  this,  but 
have  furnished  a  circulating  medium,  equally  good 
in  every  part  of  the  country,  and  redeemable 
everywhere  in  legal  tender,  upon  demand.  No 
note  holder  has  ever  lost  one  dollar  by  the  failure 
of  one  of  these  banks.  Any  one  who  remembers 
(as  the  author  well  does)  the  contrast  between  this 
orderly  and  well-regulated  financial  condition  and 
the  chaotic  state  of  our  currency  before  the  war — 
notes  of  New  York  City  banks  not  current  in  many 
parts  of  New  England — discounts  of  one,  two  or 
three  per  cent,  charged  by  brokers  in  handling  in 
one  State  the  notes  issued  in  another — constant 
counterfeits,  hard  to  detect  and  requiring  the  use 
of  a  large  volume  (known,  if  memory  serves  the 
author,  as  Thompson's  Counterfeit  Bank-Note  De 
tector) — will  in  some  degree  appreciate  the  incalcu 
lable  value  of  the  service  rendered  to  the  country 
by  Daniel  Webster,  in  the  masterly  argument 
which  led  the  court  to  this  conclusion. 

1  This  famous  phrase  of  Webster's,  "  The  power  to  tax  is  the  power  to  de 
stroy,"  was  repeated  by  Mr.  Justice  Brewer  in  Fairbank  vs.  United  States, 
181  U.  S.,  283,  291.  In  this  case  the  rule  of  construction  applied  in 
McCulloch  vs.  Maryland  to  the  grant  to  Congress  of  certain  powers,  is  ex 
tended  to  the  prohibitions  in  the  Constitution. 


44  Daniel  Webster 

The  question  of  taxation  of  the  stock  in  national 
banks  is  one  of  such  general  interest  that  we  con 
clude  this  chapter  with  two  as  yet  unpublished 
documents,  which  throw  light  upon  the  principles 
which  must  control  in  dealing  with  the  subject,  and 
which  have  since  been  adopted  by  the  Supreme 
Court  in  its  decision  upon  the  effect  of  the  present 
national  banking  law. 

The  first  is  an  opinion  given  by  Mr.  Webster  to 
Enoch  Parsons,  July  29,  I83O1: 

"  Tax   on    United    States    Bank    Stock. 

"  In  the  case  of  M'Culloch  vs.  Maryland,*  Judge  Marshall 
in  the  conclusion  of  his  opinion,  says,  'We  are  unanimously 
of  opinion,  that  the  law  passed  by  the  Legislature  of  Maryland, 
imposing  a  tax  on  the  Bank  of  The  United  States,  is  unconsti 
tutional  and  void  ';  he  then  proceeds  in  the  following  words: 
1  This  opinion  does  not  deprive  the  States  of  any  resources 
they  originally  possessed.  It  does  not  extend  to  a  tax  paid  by 
the  real  property  of  the  Bank,  in  common  with  the  other  real 
property  within  the  State,  nor  to  a  tax  imposed  on  the  interest 
which  the  citizens  of  Maryland  may  hold  in  this  institution  in 
common  with  other  property  of  the  same  description  throughout 
the  State. '  * 

"  In  the  case  of  The  City  Council  of  Charlestown,*  it  was 
determined  by  The  Sup.  Court  '  that  a  tax  imposed  by  a  law 
of  any  State  of  The  United  States,  or  under  the  authority  of 
such  a  law  on  stock  issued  for  loans  made  to  The  United  States 
is  unconstitutional.' 

"  It  would  seem  from  the  above  cases,  that,  if  the  Legis 
lature  of  Connecticut  have  taxed  the  income  of  U.  S.  Bank 

1  The  draft  in  Mr.  Webster's  own  handwriting   is  in  the  collection  of 
Websteriana,  Library  N.  H.  Hist.  Soc.,  vol.  v.,  p.  27. 
4  4  Wheat.,  316. 
8  4  Wheat.,  436. 
4  2  Peters,  S.  C.  Rep.,  449. 


United  States  National  Bank  45 

Stock  '  in  common  with  other  property  of  the  same  description 
throughout  the  State1  then  the  law  authorizing  such  tax  is  not 
unconstitutional;  but,  if  the  law  of  the  State  specifies  this 
particular  property,  stock  in  United  States  Bank,  eo  nomine 
and  assesses  a  peculiar  tax  upon  it,  such  a  law  is  unconstitu 
tional. — 

"  I  have  made  inquiry  of  a  gentleman,  who  was  formerly 
assessor  of  Boston,  respecting  the  practice  in  relation  to  assess 
ing  property  in  this  city;  he  informed  me  that  in  estimating  a 
person's  property,  stock  in  the  United  States  Bank  was  always 
considered  the  same  as  any  other  stock,  or  personal  property, 
and  the  income  arising  therefrom,  assessed  in  common  with  all 
the  other  income  of  the  persons  to  be  taxed. — 

"  D.  WEBSTER." 

The  second  is  the  following  letter  from  Chief 
Justice  Marshall  to  Mr.  Webster1: 

"  RICHMOND  June  i6th  1832. 
"  MY  DEAR  SIR 

"  I  thank  you  very  sincerely  for  the  copy  with  which  you 
have  favored  me  of  your  speeches  on  the  bill  for  renewing  the 
charter  of  the  bank  of  the  United  States.  I  need  not  say  that 
I  consider  an  accommodation  of  the  tariff  question  itself  as 
scarcely  more  interesting  to  our  country  than  the  passage  of 
that  bill.  Your  argument  presents  the  subject  in  its  strongest 
point  of  view,  and  to  me  seems  unanswerable.  Mr.  Ritchie  in 
his  Enquirer  informs  the  people  of  Virginia  that  Mr.  Tazewell 
has  refuted  you  completely.  This  he  may  have  done  in  the 
opinion  of  Mr.  Ritchie.  I  have  not  seen  Mr.  Tazewell's 
speech  and  do  not  understand  from  the  Enquirer  whether  his 
refutation  applies  to  your  speech  in  favor  ot  the  bill  or  to  that 
against  the  amendment  offered  by  Mr.  Moor.  By  the  way, 
your  argument  against  that  amendment  is  founded  on  an  idea 
which  is  to  me  quite  novel.  I  had  often  heard  it  advanced 
that  the  states  have  no  constitutional  power  to  establish  banks 
of  circulation — but  never  that  Congress  might  not  introduce 

1  The  original  of  this  letter  is  in  the  Library  of  the  New  Hampshire  His 
torical  Society. 


46  Daniel  Webster 

into  the  charter  a  restraining  principle  which  might  prohibit 
branches  altogether,  or  require  the  assent  of  a  state  to  their 
introduction;  or  a  principle  which  might  subject  them  to  state 
taxation.  This  may  be  considered  not  as  granting  power  of 
taxation  to  a  state,  for  a  state  possesses  that  power;  but  as 
withdrawing  a  bar  which  the  constitution  opposes  to  the  ex 
ercise  of  this  power  over  a  franchise  created  by  Congress  for 
national  purposes,  unless  the  constitution  of  the  franchise,  in 
its  creation,  has  this  quality  ingrafted  on  it. 

' '  I  am  however  far  from  undertaking  to  dissent  from  your 
proposition.     I  only  say  it  is  new,  and  I  ponder  on  it. 

' '  With  great  and  respectful  esteem 

"  I  am  your  obedt 

"  J  MARSHALL 

"  I  only  meant  to  express  my  obligation  for  your  attention 
and  I  have  betrayed  myself  into  the  politics  of  the  day. ' '  * 

1  As  long  ago  as  March  28,  1814,  Webster  wrote  of  the  great  Chief  Jus 
tice  :  "  I  have  never  seen  a  man  of  whose  intellect  I  had  a  higher  opinion." 


CHAPTER  V 

INTERSTATE    COMMERCE GIBBONS    VS.    OGDEN 

IMPORTANT  as  were  the  cases  to  which  reference 
has  already  been  had,  it  may  be  doubted  whether 
either  of  them  was  of  more  consequence  to  the 
country  than  the  decision  in  Gibbons  vs.  Ogden.1 

In  1807,  Robert  Fulton  had  constructed  a  steam 
boat  named  the  Clermont  (after  Chancellor  Living 
ston's  country-seat  on  the  banks  of  the  Hudson), 
which  made  a  successful  voyage  from  New  York  to 
Albany,  to  the  great  astonishment  of  the  people 
on  the  banks  of  the  river.  Afterwards,  when  slow 
communication  by  coach  and  sailing  vessel  had 
made  the  great  event  known  abroad,  it  became 
the  admiration  of  the  civilized  world. 

John  Fitch  had  previously  made  a  small  steam 
boat  which  had  moved  about  on  the  Collect  Pond 
in  New  York  City,  where  now  the  City  Prison  is 
constructed.  The  Legislature,  in  1787,  granted  to 
him  the  sole  and  exclusive  right  of  making  and 
using  every  kind  of  boat  or  vessel  impelled  by  steam 
in  all  the  waters  within  the  jurisdiction  of  New  York 
for  fourteen  years.  But  Fitch  had  not  the  capital, 
and  perhaps  not  the  skill,  to  develop  his  invention 

1  9  Wheaton,  i. 
47 


48  Daniel  Webster 

and  put  it  in  practical  operation.  Meanwhile, 
Robert  Fulton,  a  native  of  Pennsylvania,  a  son  of 
an  Irish  immigrant,  had  been  studying  the  question 
of  the  steamboat,  and  had  gone  to  France  and  en 
deavored  to  interest  the  First  Consul  in  his  plan. 
This  was  referred  to  the  Institute  for  examination, 
but  that  learned  body  did  not  seem  to  think  the 
subject  worth  its  attention.  While  Fulton  was 
thus  engaged,  the  United  States  sent  Robert  R. 
Livingston  as  Minister  to  France.  He  had  been 
experimenting  in  New  York  in  the  same  direction  as 
Fulton.  In  1798,  he  had  obtained  from  the  Legis 
lature  of  that  State  an  act  which  on  the  sugges 
tion  that  "  Fitch  was  dead  or  had  withdrawn  from 
the  State  without  having  made  any  attempt  to 
use  his  privilege,"  repealed  the  grant  to  him  and 
conferred  a  similar  privilege  on  Livingston  for 
the  term  of  twenty  years.  Livingston  met  Fulton 
and  the  two  inventors  put  their  heads  together, 
each  benefited  by  what  the  other  had  done,  and 
the  result  was  an  application  to  the  Legislature 
of  New  York  for  an  additional  grant  to  them 
both.  This  was  made  on  the  5th  day  of  April, 
1803,  and  gave  to  them  both  the  monopoly 
of  the  use  of  the  steamboat  in  New  York  and 
all  its  waters  for  twenty  years  from  the  passing 
of  the  act.  After  the  successful  trip  of  the  Cler- 
mont  in  1807,  another  act  was  passed  extending 
the  monopoly  "  five  years  for  every  additional 
boat,"  the  whole  duration,  however,  not  to  ex 
ceed  thirty  years ;  and  forbidding  any  and  all  per 
sons  to  navigate  the  waters  of  the  State  with  any 


Interstate  Commerce  49 

steamboat  or  vessel  impelled  by  steam,  without  a 
license  from  Livingston  and  Fulton,  under  penalty 
of  forfeiture  of  the  boat  or  vessel. 

In  April,  1811,  a  further  act  was  passed  provid 
ing  more  extensive  remedies,  both  at  law  and,  in 
equity,  for  enforcing  the  monopoly  which  had  been 
granted  to  Livingston  and  Fulton. 

Gibbons  undertook  to  challenge  this  monopoly. 
He  built  a  steam  ferry-boat  which  was  duly  en 
rolled  and  licensed  by  the  United  States  for  carry 
ing  on  all  coasting  trade,  and  employed  it  in  that 
trade  between  Elizabeth  in  New  Jersey  and  the 
city  of  New  York.  Ogden,  who  had  a  grant  from 
Livingston  and  Fulton,  filed  a  bill  in  the  New 
York  Court  of  Chancery  to  restrain  Gibbons  from 
the  use  of  the  boat.  The  Chancellor  and  on  ap 
peal  the  Court  of  Errors  held  that  the  acts  of 
the  State  of  New  York  under  which  Ogden  claimed 
title  were  valid.1  Gibbons  took  the  case  to  the 
Supreme  Court  of  the  United  States.  As  Mr. 
Webster  said  at  the  beginning  of  his  argument  : 

'  The  laws  in  question,  I  am  aware,  have  been  deliberately 
re-enacted  by  the  Legislature  of  New  York;  and  they  have  also 
received  the  sanction,  at  different  times,  of  all  her  judicial 
tribunals,  than  which  there  are  few,  if  any,  in  the  Country, 
more  justly  entitled  to  respect  and  deference.  The  disposition 
of  the  Court  will  be,  undoubtedly,  to  support,  if  it  can,  laws 
so  passed  and  so  sanctioned.  I  admit,  therefore,  that  it  is 
justly  expected  of  us  that  we  should  make  out  a  clear  case; 
and  unless  we  do  so,  we  cannot  hope  for  a  reversal.  It  should 

1  The  reasons  for  these  decisions  are  concisely  stated  by  Chancellor  Kent, 
Contm.,  vol.  i.,  p.  433. 

4 


50  Daniel  Webster 

be  remembered,  however,  that  the  whole  of  this  branch  of 
power,  as  exercised  by  this  Court,  is  a  power  of  revision.  The 
question  must  be  decided  by  the  State  Courts,  and  decided  in 
a  particular  manner,  before  it  can  be  brought  here  at  all.  Such 
decisions  alone  give  this  Court  jurisdiction;  and  therefore 
while  they  are  to  be  respected  as  the  judgments  of  learned 
judges,  they  are  yet  in  the  condition  of  all  decisions  from 
which  the  law  allows  an  appeal." 

He  then  proceeded  in  words  which  cannot  be 
abridged,  to  state  the  position  of  the  controversy : 

' '  By  the  law  of  New  York,  no  one  can  navigate  the  Bay 
of  New  York,  the  North  River,  the  Sound,  the  lakes,  or  any 
of  the  waters  of  the  State,  by  steam  vessels,  without  a  license 
from  the  grantees  of  New  York,  under  penalty  of  forfeiture  of 
the  vessel. 

"  By  the  law  of  the  neighboring  State  of  Connecticut,  no 
one  can  enter  her  waters  with  a  steam  vessel  having  such  a 
license. 

"  By  the  law  of  New  Jersey,  if  any  citizen  of  that  State 
shall  be  restrained,  under  the  New  York  law,  from  using  steam 
boats  between  the  ancient  shores  of  New  Jersey  and  New  York, 
he  shall  be  entitled  to  an  action  for  damages,  in  New  Jersey, 
with  treble  costs  against  the  party  who  thus  restrains  or  im 
pedes  him  under  the  law  of  New  York!  This  act  of  New 
Jersey  is  called  an  act  of  retortion  against  the  illegal  and  op 
pressive  legislation  of  New  York;  and  seems  to  be  defended 
on  those  grounds  of  public  law  which  justify  reprisals  between 
independent  States. 

"  It  will  hardly  be  contended,  that  all  these  acts  are  con 
sistent  with  the  laws  and  Constitution  of  the  United  States. 
If  there  is  no  power  in  the  general  government  to  control  this 
extreme  belligerent  legislation  of  the  States,  the  powers  of  the 
government  are  essentially  deficient  in  a  most  important  and 
interesting  particular.  The  present  controversy  respects  the 
earliest  of  these  State  laws,  those  of  New  York.  On  these, 
this  Court  is  now  to  pronounce ;  and  if  they  should  be  declared 


Interstate  Commerce  51 

to  be  valid  and  operative,  I  hope  somebody  will  point  out 
where  the  State  right  stops,  and  on  what  grounds  the  acts  of 
other  States  are  to  be  held  inoperative  and  void. 

"  It  may  be  well  to  state  again  their  general  purport  and 
effect,  and  the  purport  and  effect  of  the  other  State  laws  which 
have  been  enacted  by  way  of  retaliation. 

"  A  steam  vessel  of  any  description,  going  to  New  York,  is 
forfeited  to  the  representatives  of  Livingston  and  Fulton,  un 
less  she  have  their  license.  Going  from  New  York  or  else 
where  to  Connecticut,  she  is  prohibited  from  entering  the 
waters  of  that  State,  if  she  have  such  license. 

"If  the  representatives  of  Livingston  and  Fulton  in  New 
York  carry  into  effect,  by  judicial  process,  the  provisions  of 
the  New  York  laws,  against  any  citizen  of  New  Jersey,  they 
expose  themselves  to  a  statute  action  in  New  Jersey  for  all 
damages,  and  treble  costs." 

"  The  New  York  laws  extend  to  all  steam  vessels;  to  steam 
frigates,  steam  ferry-boats,  and  all  intermediate  classes.  They 
extend  to  public  as  well  as  private  ships;  and  to  vessels  em 
ployed  in  foreign  commerce,  as  well  as  to  those  employed  in 
the  coasting  trade. 

"The  remedy  is  as  summary  as  the  grant  itself  is  ample; 
for  immediate  confiscation,  without  seizure,  trial,  or  judgment, 
is  the  penalty  of  infringement."  ' 

Mr.  Webster  then  proceeded  to  argue  that  the 
power  of  Congress  to  regulate  commerce  was  com 
plete  and  entire  and  to  a  certain  extent  necessarily 
exclusive. 

The  argument  had  been  that  there  was  a  concur 
rent  power  in  the  States  until  Congress  should 
exercise  the  power,  which  might,  when  exercised, 
exclude  State  legislation.  To  this  Mr.  Webster 
replied  : 

"  I  do  not  mean  to  say,  that  all  regulations  which  may,  in 
1  Webster's  Works,  vol.  vi.,  pp.  5-7. 


52  Daniel  Webster 

their  operation,  affect  commerce,  are  exclusively  in  the  power 
of  Congress ;  but  that  such  power  as  has  been  exercised  in  this 
case  does  not  remain  with  the  States. 

"  Nothing  is  more  complex  than  commerce;  and  in  such  an 
age  as  this,  no  words  embrace  a  wider  field  than  commercial 
regulation.  Almost  all  the  business  and  intercourse  of  life  may 
be  connected  incidentally,  more  or  less,  with  commercial 
regulations.  But  it  is  only  necessary  to  apply  to  this  part  of 
the  Constitution  the  well-settled  rules  of  construction.  Some 
powers  are  held  to  be  exclusive  in  Congress,  from  the  use  of 
exclusive  words  in  the  grant ;  others,  from  the  prohibitions  on 
the  States  to  exercise  similar  powers;  and  others,  again,  from 
the  nature  of  the  powers  themselves.  It  has  been  by  this 
mode  of  reasoning  that  the  Court  has  adjudicated  many  im 
portant  questions;  and  the  same  mode  is  proper  here.  And, 
as  some  powers  have  been  held  to  be  exclusive,  and  others  not 
so,  under  the  same  form  of  expression,  from  the  nature  of  the 
different  powers  respectively;  so  where  the  power,  on  any  one 
subject,  is  given  in  general  words,  like  the  power  to  regulate 
commerce,  the  true  method  of  construction  will  be  to  consider 
of  what  parts  the  grant  is  composed,  and  which  of  those,  from 
the  nature  of  the  thing,  ought  to  be  considered  exclusive. 
The  right  set  up  in  this  case,  under  the  laws  of  New  York,  is 
a  monopoly.  Now  I  think  it  very  reasonable  to  say,  that  the 
Constitution  never  intended  to  leave  with  the  States  the  power 
of  granting  monopolies  either  of  trade  or  of  navigation;  and 
therefore,  that  as  to  this,  the  commercial  power  is  exclusive  in 
Congress.1 

"  It  is  in  vain  to  look  for  an  exact  and  precise  definition  of 
the  powers  of  Congress  on  several  subjects.  The  Consti 
tution  does  not  undertake  the  task  of  making  such  exact 
definitions.  In  conferring  powers,  it  proceeds  by  the  way  of 
enumeration,  stating  the  powers  conferred,  one  after  another, 
in  few  words;  and  where  the  power  is  general  or  complex  in 
its  nature,  the  extent  of  the  grant  must  necessarily  be  judged 
of,  and  limited,  by  its  object,  and  by  the  nature  of  the 
power."  " 

'Webster's  Works,  vol.  vi.,  p.  8.  3 Ibid.,  vol.  vi.,  p.  9. 


Interstate  Commerce  53 

Again  he  adds  : 

'  This  doctrine  of  a  general  concurrent  power  in  the  States 
is  insidious  and  dangerous.  If  it  be  admitted,  no  one  can  say 
where  it  will  stop.  The  States  may  legislate,  it  is  said, 
wherever  Congress  has  not  made  a  plenary  exercise  of  its 
power.  But  who  is  to  judge  whether  Congress  has  made 
this  plenary  exercise  of  power  ?  Congress  has  acted  on  this 
power;  it  has  done  all  that  it  deemed  wise;  and  are  the  States 
now  to  do  whatever  Congress  has  left  undone  ?  Congress 
makes  such  rules  as,  in  its  judgment,  the  case  requires;  and 
those  rules,  whatever  they  are,  constitute  the  system.  * 

"  All  useful  regulation  does  not  consist  in  restraint;  and  that 
which  Congress  sees  fit  to  leave  free  is  a  part  of  its  regulation, 
as  much  as  the  rest." 

He  further  argued  that  the  obvious  intent  of  the 
legislation  referred  to  was  to  give  preference  to  the 
citizens  of  some  States  over  those  of  others  : 

"  I  do  not  mean  here  the  advantages  conferred  by  the  grant 
on  the  grantees;  but  the  disadvantages  to  which  it  subjects  all 
the  other  citizens  of  New  York.  To  impose  an  extraordinary 
tax  on  steam  navigation  visiting  the  ports  of  New  York,  and 
leaving  it  free  everywhere  else,  is  giving  a  preference  to  the 
citizens  of  other  States  over  those  of  New  York.  This  Con 
gress  could  not  do;  and  yet  the  State  does  it;  so  that  this 
power,  at  first  subordinate,  then  concurrent,  now  becomes 
paramount. 

'  The  people  of  New  York  have  a  right  to  be  protected 
against  this  monopoly.  It  is  one  of  the  objects  for  which  they 
agreed  to  this  Constitution,  that  they  should  stand  on  equality 
in  commercial  regulations;  and  if  the  government  should  not 
insure  them  that,  the  promises  made  to  them  in  its  behalf 
would  not  be  performed."  " 

It  was  always  Mr.  Webster's  manner,  in  cases 
involving  constitutional  questions,  to  argue  them  at 

1  Webster's  Works,  vol.  vi.,  p.  13.  ''Ibid.,  vol.  vi. ,  p.  18. 


54  Daniel  Webster 

the  outset  on  broad  grounds.  Thus  having  clearly 
stated  and  defined  the  principles  which  should  con 
trol  the  Court  in  deciding  the  case  before  it,  he 
proceeded  on  a  narrower  line  of  argument  which 
was  open  to  him,  namely :  the  contention  that  the 
license  under  the  coasting  laws  which  the  United 
States  had  given  to  Gibbons  was  inconsistent  with 
the  legislation  of  New  York,  and  that  the  latter 
must  therefore  give  place  to  the  former.  It  was 
on  this  ground  that  the  case  was  finally  decided, 
and  yet  the  argument  of  the  Court  follows  very 
closely  that  of  Mr.  Webster  and  adopts  its  funda 
mental  propositions.  To  use  the  language  of  the 
Court : 

' '  The  appellant  contends  that  this  decree  is  erroneous,  be 
cause  the  laws  which  purport  to  give  the  exclusive  privilege  it 
sustains,  are  repugnant  to  the  constitution  and  laws  of  the 
United  States.  They  are  said  to  be  repugnant. 

"  i.  To  that  clause  in  the  constitution  which  authorizes 
congress  to  regulate  commerce. 

"  As  preliminary  to  the  very  able  discussions  of  the  consti 
tution  which  we  have  heard  from  the  bar,  and  as  having  some 
influence  on  its  construction,  reference  has  been  made  to  the 
political  situation  of  these  States,  anterior  to  its  formation.  It 
has  been  said  that  they  were  sovereign,  were  completely  inde 
pendent,  and  were  connected  with  each  other  only  by  a  league. 
This  is  true.  But  when  these  allied  sovereigns  converted  their 
league  into  a  government,  when  they  converted  their  congress 
of  ambassadors,  deputed  to  deliberate  on  their  common  con 
cerns,  and  to  recommend  measures  of  general  utility,  into  a 
legislature,  empowered  to  enact  laws  on  the  most  interesting 
subjects,  the  whole  character  in  which  the  States  appear  under 
went  a  change,  the  extent  of  which  must  be  determined  by  a 
fair  consideration  of  the  instrument  by  which  that  change  was 
effected. 


Interstate  Commerce  55 

"This  instrument  contains  an  enumeration  of  the  powers 
expressly  granted  by  the  people  to  their  government.  It  has 
been  said  that  these  powers  ought  to  be  construed  strictly. 
But  why  ought  they  to  be  so  construed  ?  Is  there  one  sentence 
in  the  Constitution  which  gives  countenance  to  this  rule  ?  In 
the  last  of  the  enumerated  powers,  that  which  grants,  expressly, 
the  means  for  carrying  all  others  into  execution,  congress  is 
authorized  to  make  'all  laws  which  shall  be  necessary  and 
proper  for  the  purpose.'  But  this  limitation  on  the  means 
which  may  be  used,  is  not  extended  to  the  powers  which  are 
conferred;  nor  is  there  one  sentence  in  the  constitution  which 
has  been  pointed  out  by  the  gentlemen  at  the  bar,  or  which  we 
have  been  able  to  discern,  that  prescribes  this  rule." 

"The  words  are:  'Congress  shall  have  power  to  regulate 
commerce  with  foreign  nations,  and  among  the  several  States, 
and  with  the  Indian  Tribes. ' 

"  The  subject  to  be  regulated  is  commerce;  and  our  Con 
stitution  being,  as  was  aptly  said  at  the  Bar,  one  of  enumera 
tion  and  not  of  definition,  to  ascertain  the  extent  of  the  power, 
it  becomes  necessary  to  settle  the  meaning  of  the  word.  The 
counsel  for  the  appellee  would  limit  it  to  traffic,  to  buying 
and  selling,  or  the  interchange  of  commodities,  and  do  not  ad 
mit  that  it  comprehends  navigation.  This  would  restrict  a 
general  term,  applicable  to  many  objects,  to  one  of  its  sig 
nifications.  Commerce  undoubtedly  is  traffic  but  it  is  some 
thing  more,  it  is  intercourse.  It  describes  the  commercial 
intercourse  between  nations,  and  parts  of  nations,  in  all  its 
branches,  and  is  regulated  by  prescribing  rules  for  carrying  on 
that  intercourse.  The  mind  can  scarcely  conceive  a  system 
for  regulating  commerce  between  nations,  which  shall  exclude 
all  laws  concerning  navigation,  which  shall  be  silent  on  the 
admission  of  the  vessels  of  the  one  nation  into  the  ports  of  the 
other,  and  be  confined  to  prescribing  rules  for  the  conduct  of 
individuals  in  the  actual  employment  of  buying  and  selling, 
or  of  barter." 

"  The  subject  is  transferred  to  Congress  and  no  exception 
1  Gibbons  vs.  Ogden,  9  Wheaton,  pp.  186-190. 


56  Daniel  Webster 

to  the  grant  can  be  admitted  which  is  not  proved  by  words  or 
the  nature  of  the  thing."  ' 

The  latest  statement  by  the  court  of  the  rule 
established  in  Gibbons  vs.  Ogden  is  to  be  found  in 
the  case  of  Atlantic  &  Pacific  Tel.  Co.  vs.  Phila 
delphia,2  in  which  the  opinion  was  delivered  June  i, 
1903: 

"  The  Constitution  of  the  United  States  having  given  to 
Congress  the  power  to  regulate  commerce,  not  only  with  for 
eign  nations,  but  among  the  several  States,  that  power  is  neces 
sarily  exclusive  whenever  the  subjects  of  it  are  national  in 
their  character,  or  admit  only  of  one  uniform  system,  or 
plan  of  regulation"  3 

Mr.  Webster's  own  opinion  of  his  argument  in 
Gibbons  vs.  Ogden  is  to  be  found  in  a  very  inter 
esting  conversation  reported  by  Harvey 4 : 

'  Mr.  Webster,  your  speech  in  answer  to  Hayne  has  been 
read,  I  think,  by  more  intelligent  persons  than  any  speech  in 
the  English  language.' 

'  Oh,  no, '  replied  he,  '  I  think  you  must  be  mistaken  about 
that.  You  must  remember  the  speeches  of  English  orators  and 

1  Gibbons  vs.  Ogden,  9  Wheaton,  p.  215. 

2  190  U.  S.,  160-162  (1903). 

3  In  accordance  with  this  rule  it  is  held  that  no  State  or  municipality  can 
levy  any  tax,  whether  by  license  fee  or  otherwise,  upon  the  doing  of  busi 
ness  in  one  State,  by  the  citizens  of  another, — Caldwell  vs.  North  Carolina, 
187  U.  S.,  622  (1903); — nor  in  any  form  upon  traffic  from  one  State  to  another 
— interstate  commerce  as  it  is  called, —  Hanley  vs.  Kansas  City  Southern  R. 
Co.,  ibid.,b\7  (1903).     On  the  other  hand  a  State  may  impose  ordinary 
property  taxes   upon  property  within  its  territory,  belonging  to  non-resi 
dents, — Atlantic  &   Pacific    Tel.   Co.  vs.   Philadelphia  supra  ; — and  may 
exercise  police  power  over  the  same,  and  tax  it  to  provide  funds  for  such 
exercise, — Western  Union  Tel.  Co.  vs.  Borough  of  New  Hope,  187  U.  S., 
4ig,(  1903). 

4  Reminiscences  of  Daniel  Webster,  p.  140. 


Interstate  Commerce  57 

statesmen  were  not  reported  as  ours  are;  neither  were  the  Eng 
lish,  to  a  great  extent,  a  reading  people.  Everything  that  is 
worth  reading  and  is  eloquent,  our  people  read.' 

"  After  a  pause,  he  went  on: 

"  '  Well,  I  don't  know;  you  may  be  right  in  that.  But  that 
was  not  my  best  speech.' 

' '  I  said,  that,  if  it  was  not  the  best  speech,  it  had  the 
greatest  fame. 

"  '  Well,'  said  he,  '  I  suppose  it  has.  Nevertheless,  it  was 
not,  in  my  judgment,  the  best  speech  I  ever  made;  but,  as  a 
popular  effort,  it  was  undoubtedly  more  read  than  any  other 
speech.' 

"  '  What  do  you  regard  as  your  greatest  speech  ? '  I  asked. 

"  '  My  forensic  efforts  have  been  those  which  have  pleased 
me  most.  The  two  arguments  that  have  given  me  the  most 
satisfaction  were  the  arguments  in  the  "  steamboat  case  "  and 
the  Dartmouth  College  argument.  The  steamboat  case,  you 
remember,  was  a  question  of  the  constitutionality  of  the  right 
of  New  York  State  to  give  a  monopoly  to  Fulton  and  his  heirs 
forever,  of  the  privilege  of  plying  the  waters  of  the  Hudson 
with  his  steamboats.  The  value  of  such  a  right  was  not  then 
and  could  not  have  been,  from  the  nature  of  the  case,  fully 
understood.  But  it  seemed  to  me  to  be  against  the  very 
essence  of  State  rights,  and  a  virtual  dissolution  of  the  Union 
in  a  commercial  sense.  If  New  York  had  a  right  to  lay  tolls 
upon  her  rivers  for  everybody  that  should  pass,  then  all  the 
other  great  international  rivers  and  lakes  would  have  the  same 
right,  and  we  could  not  be  one  as  a  commercial  people.  The 
people  of  New  York  felt  that  their  rights  were  at  stake  in  the 
contest;  and  their  great  lawyers — and  they  had  many  of  them 
— were  engaged  on  that  side;  the  Livingstons  and  Clintons  and 
others  of  like  calibre.  Mr.  Wirt  and  myself  were  employed 
against  the  monopoly.  When  the  case  came  to  be  argued  be 
fore  the  Supreme  Court  at  Washington,  Chief  Justice  Marshall 
presiding,  Mr.  Wirt  and  myself  met  for  consultation.  Mr. 
Wirt  asked  me  upon  what  grounds  I  based  my  case,  upon  what 
clause  of  the  Constitution.  He  had  a  right  to  ask,  as  he  was 
my  senior  in  years  and  professional  fame.  My  reply  was,  that 


58  Daniel  Webster 

the  clause  of  the  Constitution  which  ceded  to  the  general  gov 
ernment  the  right  to  regulate  commerce  was  that  upon  which 
I  based  my  defence.  Mr.  Wirt's  reply  to  that  was,  that  he  did 
not  see,  in  that  line  of  argument,  any  ground  for  our  case  to 
rest  upon.  I  said:  "  Very  well;  what  is  yours  ?  "  So  he  told 
me.  I  do  not  recollect  what  it  was,  but  it  was  a  totally  differ 
ent  clause  in  which  he  found  the  ground  of  his  argument.  I 
said  to  him :  ' '  Mr.  Wirt,  I  will  be  as  frank  with  you  as  you 
have  been  with  me,  and  say  that  I  do  not  see  the  slightest 
ground  to  rest  our  case  upon  in  your  view  of  it."  "Very 
well,"  replied  Mr.  Wirt,  "  let  us  each  argue  it  in  our  own  way, 
and  we  will  find  out  which,  if  either,  is  right." 

' '  '  The  case  came  on  for  argument.  Mr.  Wirt  made  one  of  his 
brilliant  arguments  before  the  Court.  1  followed  with  my  view. 

"  '  I  can  see  the  Chief  Justice  as  he  looked  at  that  moment. 
Chief  Justice  Marshall  always  wrote  with  a  quill.  He  never 
adopted  the  barbarous  invention  of  steel  pens.  That  abomi 
nation  had  not  been  introduced.  And  always,  before  counsel 
began  to  argue,  the  Chief  Justice  would  nib  his  pen ;  and  then, 
when  everything  was  ready,  pulling  up  the  sleeves  of  his  gown, 
he  would  nod  to  the  counsel  who  was  to  address  him,  as  much 
as  to  say,  '  'I  am  ready;  now  you  may  go  on." 

"  '  I  think  I  never  experienced  more  intellectual  pleasure 
than  in  arguing  that  naval  question  to  a  great  man  who  could 
appreciate  it,  and  take  it  in;  and  he  did  take  it  in,  as  a  baby 
takes  in  its  mother's  milk. 

"  '  The  result  of  the  case  was  this:  the  opinion  of  the  Court, 
as  rendered  by  the  Chief  Justice,  was  little  else  than  a  recital 
of  my  argument.  The  Chief  Justice  told  me  that  he  had  little 
to  do  but  to  repeat  that  argument,  as  that  covered  the  whole 
ground.  And,  which  was  a  little  curious,  he  never  referred  to 
the  fact  that  Mr.  Wirt  had  made  an  argument.  He  did  not 
speak  of  it  once.' 

"  Then  Mr.  Webster  added: 

"'That  was  very  singular.  It  was  an  accident,  I  think. 
Mr.  Wirt  was  a  great  lawyer,  and  a  great  man.  But  some 
times  a  man  gets  a  kink  and  does  n't  hit  right.  That  was  one 
of  the  occasions.  But  that  was  nothing  against  Mr.  Wirt. '  ' 


Interstate  Commerce  59 

It  is  not  often  that  we  have  a  description  of  a 
great  legal  argument  by  two  of  the  judges  who 
heard  it.  In  the  present  case  we  have  this  rare 
good  fortune.  In  the  unpublished  manuscript 
from  which  we  have  before  quoted,  Mr.  Justice 
Story  thus  describes  Webster's  argument  in  Gib 
bons  vs.  Ogden  : 

"Of  Mr.  Webster's  argument  in  the  opening  of  this  case 
(for  it  was  closed  by  Mr.  Wirt  in  a  speech  of  great  splendor 
and  force)  it  may  be  said  to  furnish  as  good  a  specimen  of  the 
characteristics  of  his  mind,  as  any  which  could  be  named.  We 
have  here  in  as  favorable  a  light  as  we  could  desire,  his  clear 
ness  and  downright  simplicity  of  statement,  his  vast  compre 
hensiveness  of  topics,  his  fertility  in  illustrations  drawn  from 
practical  sources ;  his  keen  analysis,  and  suggestion  of  difficul 
ties;  his  power  of  disentangling  a  complicated  proposition,  and 
resolving  it  in  elements  so  plain  as  to  reach  the  most  common 
minds;  his  vigor  in  generalizations,  planting  his  own  argument 
behind  the  whole  battery  of  his  opponents;  his  wariness  and 
caution  not  to  betray  himself  by  heat  into  untenable  positions, 
or  to  spread  his  forces  over  useless  ground.  Everywhere  we 
see  him,  as  it  were,  fortifying  himself  on  all  sides  within  the 
narrowest  limits  for  his  cause  with  all  the  limitations  and  quali 
fications  belonging  to  it;  yet  still  ready  at  every  moment  to 
center,  like  a  skillful  general,  at  the  weak  points  of  his  adver 
sary's  position.  Whoever  with  a  view  to  the  real  difficulties 
of  the  case  and  the  known  ability  of  his  opponents,  shall  sit 
down  to  the  task  of  perusing  this  argument  will  find,  that  it  is 
equally  remarkable  for  profoundness  and  sagacity,  for  the 
choice,  and  comprehensiveness  of  the  topics,  and  for  the 
delicacy  and  tact,  with  which  they  are  handled.  The  reader 
goes  on  and  so  naturally  falls  into  the  current  of  the  argu 
ment,  that  he  thinks  all  quite  plain  and  indisputable,  until 
shutting  the  book,  he  attempts  to  frame  an  argument  for  him 
self  on  the  same  topics  and  to  answer  his  adversaries.  Like 
Partridge  in  Tom  Jones,  when  he  saw  Garrick  act,  all  seemed 


60  Daniel  Webster 

so  natural,  and  without  effort,  that  he  is  convinced  that  there 
can  be  neither  art  nor  address,  nor  genius  in  the  affair.  Yet 
it  is  this  very  power,  this  naturalness  and  plainness  of  remark, 
which  makes  Mr.  Webster  so  irresistible  to  a  jury." 

It  is  our  good  fortune  to  have  another  account  of 
this  argument  from  Mr.  Justice  Wayne.  When 
Mr.  Webster  was  in  Savannah,  in  1847,  a  public 
reception  was  given  him.  Mr.  Justice  Wayne  pre 
sided  and  addressed  Mr.  Webster.  In  the  course  of 
this  address  he  said  : 

' '  From  one  of  your  constitutional  suggestions,  every  man  in 
the  land  has  been  more  or  less  benefited.  We  allude  to  it 
with  the  greater  pleasure,  because  it  was  in  a  controversy,  be 
gun  by  a  Georgian  in  behalf  of  the  constitutional  rights  of  the 
citizen. 

"  When  the  late  Mr.  Thomas  Gibbons  determined  to  hazard 
a  large  part  of  his  fortune  in  testing  the  constitutionality  of  the 
laws  of  New  York,  limiting  the  navigation  of  the  waters  in 
that  State  to  steamers  belonging  to  a  company,  his  own  interest 
was  not  so  much  concerned  as  the  right  of  every  citizen  to  use 
a  coasting  license  upon  the  waters  of  the  United  States,  in 
whatever  way  his  vessel  was  propelled.  It  was  a  sound  view 
of  the  law,  but  not  broad  enough  for  the  occasion.  It  is  not 
unlikely  that  the  case  would  have  been  decided  upon  it,  if  you 
had  not  insisted  that  it  should  be  put  upon  the  broader  con 
stitutional  ground  of  commerce  and  navigation.  The  court 
felt  the  application  and  force  of  your  reasoning,  and  it  made 
a  decision  releasing  every  creek  and  river,  lake,  bay,  and 
harbor  in  our  country  from  the  interference  of  monopolies, 
which  had  already  provoked  unfriendly  legislation  between 
some  of  the  States,  and  which  would  have  been  as  little  favor 
able  to  the  interest  of  Fulton  as  they  were  unworthy  of  his 
genius."  * 

i 

Two  years  later,  in  the  course  of  his  opinion  in 

1  Webster's  Works,  vol.  ii.,  p    399. 


Interstate  Commerce  61 

the    Passenger  cases, 1    Mr.    Justice   Wayne    thus 
spoke  of  the  prior  decision  : 

"  The  case  of  Gibbons  v.  Ogden,  in  the  extent  and  variety 
of  learning,  and  in  the  acuteness  of  distinction  with  which  it 
was  argued  by  counsel,  is  not  surpassed  by  any  other  case  in 
the  reports  of  courts.  In  the  consideration  given  to  it  by  the 
court,  there  are  proofs  of  judicial  ability,  and  of  close  and 
precise  discrimination  of  most  difficult  points,  equal  to  any 
other  judgment  on  record.  To  my  mind,  every  proposition  in 
it  has  a  definite  and  unmistakable  meaning.  Commentaries 
cannot  cover  them  up  or  make  them  doubtful. 

"  The  case  will  always  be  a  high  and  honorable  proof  of  the 
eminence  of  the  American  Bar  of  that  day,  and  of  the  talents 
and  distinguished  ability  of  the  judges  who  were  then  in  the 
places  which  we  now  occupy. 

'There  were  giants  in  those  days,  and  1  hope  I  may  be 
allowed  to  say,  without  more  than  judicial  impressiveness  of 
manner  or  of  words,  that  I  rejoice  that  the  structure  raised  by 
them  for  the  defence  of  the  Constitution,  has  not  this  day  been 
weakened  by  their  successors." 

Chief  Justice  Marshall  concluded  his  opinion  in 
Gibbons  vs.  Ogden  with  the  following  remarkable 
statement : 

"  Powerful  and  ingenious  minds,  taking  as  postulates  that 
the  powers  expressly  granted  to  the  government  of  the  Union, 
are  to  be  contracted  by  construction  into  the  narrowest  pos 
sible  compass,  and  that  the  original  powers  of  the  States  are 
retained,  if  any  possible  construction  will  retain  them,  may,  by 
a  course  of  well-digested  but  refined  and  metaphysical  reason 
ing  founded  on  these  premises,  explain  away  the  constitution 
of  our  country,  and  leave  it  a  magnificent  structure,  indeed,  to 
look-  at,  but  totally  unfit  for  use.  They  may  so  entangle  and 
perplex  the  understanding,  as  to  obscure  principles  which  were 
before  thought  quite  plain,  and  induce  doubts,  where,  if  the 
1  7  Howard,  437. 


62  Daniel  Webster 

mind  were  to  pursue  its  own 'course,  none  would  be  perceived. 
In  such  a  case,  it  is  peculiarly  necessary  to  recur  to  safe  and 
fundamental  principles  to  sustain  those  principles,  and,  when 
sustained,  to  make  them  the  tests  of  the  arguments  to  be 
examined." 

The  rule  for  deciding  constitutional  questions 
thus  laid  down  is  a  concise  repetition  of  the  more 
elaborate  statement  at  the  beginning  of  the  opinion. 
It  is  a  fundamental  rule.  It  is  not  too  much  to 
say  that  Qie  application  of  the  rules  of  construction 
which  we  have  quoted  from  this  opinion  \has  given 
to  our  country  that  government  which  we  now 
enjoy,  and  that  we  owe  it  to  Mr.  Webster  that  the 
conscience  and  judgment  of  the  Supreme  Court 
became  satisfied  that  the  rule  referred  to  was  the 
one  unfailing  test  of  the  validity  of  any  constitu 
tional  argument.  This  contention  became  a  part 
of  the  national  consciousness  and  sustained  the 
nation  in  its  great  struggle  from  1861  to  1865^ 

1  Gibbons  vs.  Ogden,  9  Wheaton,  p.  222. 


CHAPTER  VI 

THE    SLAVE    TRADE — "  LA    JEUNE    EUGENIE  " 

THE  next  case  of  magnitude  which  deserves 
commemoration  is  that  of  La  Jeune  Eugenie.1  To 
us  who  live  in  the  day  when  not  only  the  slave 
trade  but  slavery  itself  has  been  abolished,  it  is 
strange  there  ever  could  have  been  a  question 
whether  the  trade  in  slaves  was  in  violation  of  the 
law  of  nations.  But  that  question  was  raised  and 
came  for  decision  at  about  the  same  time  before 
those  two  great  men  who  simultaneously  adorned 
the  bench  of  England  and  America,  Lord  Stowell 
and  Judge  Story.  Their  respective  decisions  illus 
trate  what  we  have  said  as  to  the  functions  of  the 
judge  and  the  advocate,  and  the  essential  part  the 
latter  plays  in  the  drama  of  justice. 

There  had  been  a  time  when  all  nations  were  en 
gaged  in  this  traffic.  Afterwards  many  of  them 
passed  laws  forbidding  it  to  their  own  citizens. 
The  question  arose,  whether  the  court  could  take 
these  isolated  enactments  and  construe  them  as  in 
the  aggregate  forming  a  general  law  enforcible  by 
the  cruisers,  and  in  the  courts  of  all  nations  which 
had  adopted  similar  laws. 

1  2  Mason,  409  (1822). 
63 


64  Daniel  Webster 

This  was  a  question  of  vital  importance  to  the 
world.  The  suppression  of  the  slave  trade  had  be 
come  of  international  importance.  But  it  was  a 
very  profitable  trade  and  the  cupidity  of  those  en 
gaged  in  it  led  to  constant  contrivances  for  the 
evasion  of  the  laws  against  it.  The  nations  which 
had  passed  these  laws  kept  naval  vessels  on  the 
African  coast  for  the  capture  of  slavers.  But  if 
each  vessel  had  the  right  to  capture  only  slave 
ships  of  its  own  nationality,  the  slavers  would  fly 
the  French  flag  in  the  presence  of  an  American 
frigate,  and  when  the  latter  was  out  of  sight  would 
hoist  the  stars  and  stripes  as  a  French  frigate  ap 
proached.  As  Commodore  Stockton  wrote  Mr. 
Webster  (February  5,  1821),  in  reference  to  this 
very  case : 

"  If  the  Flag  of  nations  who  have  prohibited  the  Trade 
shall  yet  cover  it  so  as  that  it  can't  be  questioned  by  another, 
for  ourselves  we  had  better  keep  our  business  at  home.  It  is 
perfectly  well  known  at  what  rate  Americans  can  be  turned 
into  Frenchmen  or  Spaniards  in  the  West  Indies."  ' 

La  Jeune  Eugenie  was  a  slaver,  flying  the  French 
flag,  which  was  captured  by  an  American  frigate 
and  brought  into  Boston  for  adjudication. 

William  Sullivan,  one  of  the  most  brilliant  law 
yers  of  that  day,  argued  that  an  American  frigate 
had  no  right  to  seize  a  French  vessel  for  the  viola 
tion  of  the  law  of  France,2  and  that  the  American 

1  15  Webster's  Writings  and  Speeches,  279. 

2  It  is  interesting  to  note  in  this  connection  that  the  first  law  of  France 
prohibiting  French  vessels  from  engaging  in  the  slave  trade  was  a  decree 
of  Napoleon,  dated  March,  1815,  soon  after  his  return  from  Elba.     Louis 


The  Slave  Trade  65 

law  was  not  binding  on  French  vessels.  Mr. 
Webster  argued  "  that  most  all  of  the  civilized  na 
tions  of  the  globe  had  declared  their  sense  of  the 
illegality  of  this  trade,  by  enacting  laws  to  suppress 
it,  and  by  various  other  public  acts,  treaties  and 
declarations.  And  that  it  might  now  therefore  be 
considered  as  contrary  to  the  conventional  law  of 
nations."  l 

Judge  Story  in  his  opinion  characterizes  the  ar 
guments  of  the  counsel  as  "very  able,  eloquent  and 
learned,"2  and  he  decided  in  favor  of  the  position 
maintained  by  Mr.  Webster.  As  Commodore 
Stockton  in  the  letter  before  quoted  justly  said : 

"  If  you  can  maintain  the  great  point  you  have  taken,  you 
will  have  done  more  for  the  cause  of  humanity  than  all  the 
societies  in  the  U.  S.  put  together."  3 

Unfortunately  for  this  cause,  other  courts,  which 
did  not  have  the  aid  of  Webster's  "  able,  eloquent 
and  learned  "  argument,  decided  differently.  In  the 
case  of  the  Antelope*  the  Supreme  Court  of  the 
United  States  ordered  restitution  to  a  Spanish  sub 
ject  of  negroes  captured  from  his  slave  ship  by  an 
American  frigate.  This  was,  it  is  true,  by  an 
equally  divided  Court,  which  because  of  such  divi 
sion  affirmed  the  decree  of  the  Court  below.  And 
at  an  earlier  date  (December  15,  1817),  Lord 

XVIII.  declared  this  like  all  the  other  laws  of  the  Hundred  Days  (of  "  the 
usurper"  as  Talleyrand  called  him)  to  be  void.     But  in  1817  Louis  made  a 
decree  of  somewhat  similar  purport.     2  Dodson,  Adm.  Rep.,  5. 
1 15  Webster's  Writings  and  Speeches  (Ed.  1903),  280. 

3  2  Mason  Rep.,  463. 

8  Webster's  Writings  and  Speeches  (Ed.  1903),  vol.  xv.,  p.  279. 

4  10  Wheaton,  66  (1825). 

5 


66  Daniel  Webster 

Stowell,  the  great  English  Admiralty  Judge,  held 
that  the  slave  trade  was  not  contrary  to  the  law  of 
nations.1 

It  is,  however,  to  be  noted  that  public  opinion, 
both  in  the  United  States  and  Great  Britain,  had 
already  become  so  strong  against  the  slave  trade, 
that  British  courts  had  sustained  the  seizure  by  a 
British  frigate  of  a  slaver  flying  the  American  flag.2 
These  courts  seem  to  have  considered  that  these 
two  commercial  nations  had  at  least  made  a  law  for 
themselves. 

At  a  later  date,  in  order  to  meet  the  need  occa 
sioned  by  these  adverse  decisions,  and  in  conse 
quence  of  that  progressive  public  opinion  which 
finally  caused  the  abolition  of  slavery,  civilized 
nations  gradually  came  to  an  express  agreement 
by  virtue  of  which  the  slave  trade  was  suppressed. 
The  last  cargo  of  negro  slaves  successfully  landed 
was  in  1860.  But  this  was  an  exception.  Few  in 
deed  were  the  slavers  who  escaped  the  vigilance 
of  American  and  British  cruisers  during  the  two 
previous  decades. 

1  Le  Louis,  2  Dodson  Adm.,  210. 

%T\iQAmedie,  i  Acton,  240  (1810),  High  Court  of  Appeals.  The  case 
is  also  reported  in  note  to  I  Dodson,  Adm.,  84.  To  the  same  effect  is  the 
Fortuna,  i  Dodson,  95  (1811),  decided  by  Sir  Wm.  Scott,  afterwards  Lord 
Stowell.  It  is  hard  to  reconcile  this  with  his  later  decision  in  Le  Louis. 
In  Madrazo  vs.  Willes,  3  Barn,  and  Aid,  358  (1820),  Mr.  Justice  Best,  in 
the  King's  Bench  (p.  359),  said  that  if  the  law  of  Spain  prohibited  this  trade, 
a  Spanish  slaver  could  lawfully  be  captured  by  a  British  cruiser.  But  as 
the  law  of  Spain  did  not  at  the  time  of  capture  (1818)  prohibit  the  trade, 
damages  were  awarded  for  such  capture. 


CHAPTER    VII 

STATE    INSOLVENT    LAWS OGDEN    US.    SAUNDERS 

THE  next  case  of  importance  that  Mr.  Webster 
argued  in  the  Supreme  Court  was  that  of  Ogden 
vs.  Saunders.1 

The  question  involved  in  this  case  was  as  to  the 
validity  of  the  insolvent  laws  of  the  several  States. 
There  was  no  federal  bankruptcy  act  in  force. 

The  severe  financial  distress  which  began  with 
the  restrictions  upon  our  commerce  created  by  the 
embargo  before  the  War  of  1812,  and  which  was 
intensified  by  the  suspension  of  specie  payments 
and  by  the  disorganized  condition  of  the  currency 
at  the  close  of  that  war,  had  led  many  of  the  States 
to  pass  insolvency  laws.  It  was  contended  that 
these  laws  were  contrary  to  that  provision  of  the 
Constitution  which  prohibited  a  State  from  impair 
ing  the  obligation  of  contracts.  Mr.  Webster's 
conviction  was  that  the  whole  subject  could  best  be 
dealt  with  by  Congress,  and  that  the  condition  of 
trade  between  the  different  States  would  be  bene 
fited  by  the  passage  of  a  national  bankruptcy  act, 
which  should  protect  the  rights  of  creditors  from 

1  12  Wheat.,  213.     Mr.  Webster's  argument  is  in  Webster's    Works,  vol. 
vi.,  p.  24. 

67 


68  Daniel  Webster 

every  State,  and  at  the  same  time  furnish  to  an 
unfortunate  debtor  the  opportunity  of  beginning 
business  again. 

In  April,  1830,  Mr.  Webster  wrote  a  letter  to  the 
Prison  Discipline  Society  of  Boston,  advocating 
the  mitigation  of  the  laws  for  the  imprisonment  of 
debtors.1  He  always  favored  the  enactment  of  a 
national  bankruptcy  law.  But  when  the  validity  of 
the  State  insolvent  laws  came  before  the  courts, 
he  argued  earnestly  that  the  Constitution  had  de 
prived  the  States  of  the  power  of  legislation  on  this 
subject. 

The  case  was  argued  at  the  February  term  in 
1824,  was  continued  for  advisement  until  the  Janu 
ary  term  of  1827,  when  a  reargument  was  ordered, 
and  at  the  conclusion  of  the  argument  of  this  and 
other  cases  which  were  pending,  involving  the  ques 
tion  in  different  forms,  a  divided  Court  decided  that 
an  insolvent  law  of  a  State  was  valid  so  far  as  it 
affected  contracts  which  were  entered  into  after  the 
enactment  of  the  law.  In  other  words,  it  held  that 
a  contract  must  be  presumed  to  be  made  with  ref 
erence  to  the  law  of  the  State  within  whose  limits 
the  contract  itself  was  agreed  to,  and  became  bind 
ing  upon  the  parties.  But  the  previous  decision  in 
Sturges  vs.  Crowninshield,2  that  the  contract  could 
not  be  affected,  or  its  validity  impaired  by  subse 
quent  legislation,  was  reaffirmed.  By  a  divided 
Court  it  was  also  held  that  this  legislation  could  not 
affect  the  rights  of  creditors  who  were,  when  the 
contract  was  made,  citizens  of  a  State  other  than 

^Letters  of  Webster,  Van  Tyne,  pp.  155-157.  84  Wheat.,  122. 


State  Insolvent  Laws  69 

that  enacting  the  State  law.  These  decisions  de 
prived  the  State  insolvent  laws  of  much  of  their 
value,  and  no  doubt  were  powerful  factors  in  induc 
ing  Congress  to  pass  the  national  bankruptcy  law 
of  1841.  That  law  was  passed  in  a  time  of  general 
financial  distress,  and  it  might  almost  be  said  of 
general  insolvency.  Its  object  was  mainly  to  re 
lieve  unfortunate  debtors.  It  failed  properly  to 
recognize  the  rights  of  creditors,  and  for  that  reason 
mainly  its  life  was  short.  Subsequently  a  national 
bankrupt  act  more  carefully  considered  has  become 
a  law,  and  seems  likely  to  remain  as  a  portion  of 
our  national  legislation.  And  thus  it  has  come  to 
pass  that  the  argument  which  Mr.  Webster  ad 
dressed  to  the  Court,  and  which,  like  all  his  argu 
ments  in  cases  of  public  importance,  was  read  by 
the  people  and  reached  their  judgment,  has  finally 
become  a  part  of  our  jurisprudence,  though  it  failed 
to  convince  the  Court  to  which  it  was  first  ad 
dressed.  The  old  maxim  is  that  "  hard  cases  make 
shipwreck  of  the  law."  The  insolvent  condition  of 
the  debtors  who  were  trying  to  begin  business 
life  again,  and  the  hardship  to  them  if  no  legal 
method  existed  by  which  an  honest  insolvent  could 
make  a  new  start,  no  doubt  had  much  to  do  with 
the  decision  in  Ogden  vs.  Saunders. 


CHAPTER  VIII 

ACQUISITION   OF  NEW  TERRITORY AMERICAN    INSUR 
ANCE  COMPANY  VS.  CANTER 

THE  question  of  the  authority  of  Congress  over 
territory  acquired  by  the  United  States  in  pur 
suance  of  treaty  with  a  foreign  country,  either  as 
the  result  of  war  or  of  peaceful  negotiations,  has 
attracted  recent  attention  in  consequence  of  the 
war  with  Spain  and  the  cession  by  that  kingdom 
to  the  United  States  of  the  Philippine  Islands  and 
Porto  Rico.  Justices  of  the  Supreme  Court  dif 
fered  greatly  in  regard  to  the  disposition  of  par 
ticular  cases  in  which  this  question  was  argued. 
But  the  principles,  upon  the  application  of  which 
depended  the  decision  of  what  have  been  known 
as  the  Insular  cases,  are  drawn  from  the  decision 
of  the  United  States  Supreme  Court  in  the  case 
of  the  American  Insurance  Company  vs.  Canter.1 
Curiously  enough,  in  this  case  also,  the  territory  in 
question  had  been  purchased  from  Spain.  It  was 
the  peninsula  of  Florida,  which  was  acquired  by 
the  United  States  by  purchase  under  the  treaty  of 
1819.  In  this  treaty,  however,  unlike  that  of  1898, 
the  Spanish  Government  stipulated  that  the  in- 

1  I  Peters,  511  (1828). 
70 


Acquisition  of  New  Territory  71 

habitants  of  the  territories  ceded  should  possess 
certain  definite  civil  rights.  The  clause  of  the 
treaty  referred  to  will  be  quoted  hereafter.  After 
the  treaty,  and  in  1823,  Congress  passed  an  act 
providing  for  a  legislature  in  the  new  territory,  and 
giving  to  that  legislature  power  to  establish  inferior 
courts.  Pursuant  to  this  provision  the  legislature 
did  establish  a  court,  consisting  of  a  notary  and 
five  jurymen,  who  should  have  jurisdiction  to  de 
termine  the  amount  of  salvage  which  should  be 
payable  to  the  salvors  of  property.  Wrecks  on 
the  Florida  keys  have  always  been  frequent,  and 
the  Court  at  Key  West  has  always  been  busy  with 
salvage  questions.  In  the  case  under  considera 
tion,  cotton  was  saved  from  a  wreck,  was  carried 
into  Key  West,  the  Court  there  ordered  it  sold 
and  the  purchaser  claimed  a  valid  title  under  the 
judgment  of  this  Court.  It  was  contended  on  the 
other  side  that  the  Admiralty  courts  of  the  United 
States  had  exclusive  jurisdiction  of  salvage  cases, 
and  that  the  court  created  by  this  act  of  the  ter 
ritorial  legislature  was  without  jurisdiction.  Mr. 
Webster's  argument  is  not  contained  in  his  pub 
lished  works,  and  is  briefly  given  in  the  report  in 
Peters  (p.  538).  The  following  extract  from  this 
report  will  give  the  reader  some  conception  of  his 
position  : 

"What  is  Florida?  It  is  no  part  of  the  United  States. 
How  can  it  be  ?  How  is  it  represented  ?  Do  the  laws  of  the 
United  States  reach  Florida  ?  Not  unless  by  particular 
provisions. 

"The  territory  and   all  within  it,  are  to  be  governed  by 


72  Daniel  Webster 

the  acquiring  power,  except  where  there  are  reservations  by 
treaty. 

"  By  the  law  of  England,  when  possession  is  taken  of  terri 
tories,  the  King,  Jure  Corona,  has  the  power  of  legislation 
until  Parliament  shall  interfere.  Congress  have  the  Jus 
Corona  in  this  case,  and  Florida  was  to  be  governed  by 
Congress  as  she  thought  proper. 

"  What  has  Congress  done  ?  She  might  have  done  anything 
— she  might  have  refused  trial  by  jury  and  refused  a  legisla 
ture.  She  has  given  a  legislature  to  be  exercised  at  her  will; 
and  a  government  of  a  mixed  nature  in  which  she  has  en 
deavored  to  distinguish  between  State  and  United  States  juris 
diction,  anticipating  the  future  erection  of  the  territory  into  a 
State. 

"  Does  the  law  establishing  the  court  at  Key  West  come 
within  the  restrictions  of  the  Constitution  of  the  United  States  ? 
If  the  Constitution  does  not  extend  over  this  territory  the  law 
cannot  be  inconsistent  with  the  national  Constitution." 

The  decision  of  the  Court  followed  this  argument 
very  closely.  It  is  on  the  following  passage  in  the 
opinion  delivered  by  Chief  Justice  Marshall  that 
the  decisions  in  the  Insular  cases  are  really  based. l 

"  The  course  which  the  argument  has  taken  will  require  that 
in  deciding  this  question,  the  court  should  take  into  view  the 
relation  in  which  Florida  stands  to  the  United  States. 

"  The  constitution  confers  absolutely  on  the  government  of 
the  Union  the  powers  of  making  war  and  of  making  treaties; 
consequently,  that  government  possesses  the  power  of  acquir 
ing  territory  either  by  conquest  or  by  treaty. 

"  The  usage  of  the  world  is,  if  a  nation  be  not  entirely  sub 
dued,  to  consider  the  holding  of  conquered  territory  as  a  mere 
military  occupation,  until  its  fate  shall  be  determined  at  the 
treaty  of  peace.  If  it  be  ceded  by  the  treaty  the  acquisition  is 
confirmed,  and  the  ceded  territory  becomes  a  part  of  the  nation 
to  which  it  is  annexed,  either  on  the  terms  submitted  in  the 
1  I  Peters,  541,  542. 


Acquisition  of  New  Territory  73 

treaty  of  cession,  or  on  such  as  its  new  master  shall  impose. 
On  such  transfer  of  territory  it  has  never  been  held  that  the 
relations  of  the  inhabitants  with  each  other  undergo  any 
change.  Their  relations  with  their  former  sovereign  are  dis 
solved,  and  new  relations  are  created  between  them  and  the 
government  which  has  acquired  their  territory.  The  same  act 
which  transfers  their  country  transfers  the  allegiance  of  those 
who  remain  in  it;  and  the  law,  which  may  be  denominated 
political,  is  necessarily  changed,  although  that  which  regulates 
the  intercourse  and  general  conduct  of  individuals  remains  in 
force  until  altered  by  the  newly  created  power  of  the  state. 

"  On  the  2nd  of  February,  1819,  Spain  ceded  Florida  to  the 
United  States.  The  sixth  article  of  the  treaty  of  cession  con 
tains  the  following  provision — '  The  inhabitants  of  the  territories 
which  his  Catholic  Majesty  cedes  to  the  United  States  by  this 
treaty,  shall  be  incorporated  in  the  Union  of  the  United  States 
as  soon  as  may  be  consistent  with  the  principles  of  the  federal 
constitution,  and  admitted  to  the  enjoyment  of  the  privileges, 
rights,  and  immunities  of  the  citizens  of  the  United  States.' 

"  This  treaty  is  the  law  of  the  land,  and  admits  the  inhabi 
tants  of  Florida  to  the  enjoyment  of  the  privileges  rights  and 
immunities  of  the  citizens  of  the  United  States.  It  is  unneces 
sary  to  inquire  whether  this  is  not  their  condition,  independent 
of  stipulation.  They  do  not,  however,  participate  in  political 
power;  they  do  not  share  in  the  government  till  Florida  shall 
become  a  State.  In  the  meantime,  Florida  continues  to  be  a 
territory  of  the  United  States,  governed  by  virtue  of  that 
clause  in  the  Constitution  which  empowers  Congress  '  to  make 
all  needful  rules  and  regulations  respecting  the  territory  or 
other  property  belonging  to  the  United  States.' 

"  Perhaps  the  power  of  governing  a  territory  belonging  to 
the  United  States,  which  has  not,  by  becoming  a  State,  acquired 
the  means  of  self-government,  may  result  necessarily  from  the 
facts  that  it  is  not  within  the  jurisdiction  of  any  particular  State 
and  is  within  the  power  and  jurisdiction  of  the  United  States. 
The  right  to  govern  may  be  the  inevitable  consequence  of  the 
right  to  acquire  territory.  Whichever  may  be  the  source  whence 
the  power  is  derived,  the  possession  of  it  is  unquestioned.  In 


74  Daniel  Webster 

execution  of  it,  Congress  in  1822,  passed  'an  act  for  the  estab 
lishment  of  a  territorial  government  in  Florida,'  and  on  the 
3rd  of  March,  1823,  passed  another  act  to  amend  the  act  of 
1822.  Under  this  act  the  territorial  jurisdiction  enacted  the 
law  now  under  consideration." 

It  is  not  within  the  scope  of  this  work  to  con 
sider  in  detail  the  decisions  in  the  Insular  cases. 
To  do  so  would  require  a  volume.  But  in 
general  it  may  be  said  that  they  establish  two 
propositions  : 

1.  Territory  acquired  by  the  United  States  by 
purchase  is  not  "  a  foreign  country,"  nor  are  its 
citizens  aliens. 

2.  It  is  subject  only  to  the  law-making  power  of 
Congress,  and  the  restrictions  of  the  Constitution 
of  the  United  States  do  not  limit  this  power.1 

This  question  became  important  with  reference  to 
the  subject  of  slavery.  It  was  claimed  by  Calhoun, 
in  opposition  to  the  decision  of  the  Supreme  Court 
in  the  case  just  referred  to,  that  the  various  pro 
visions  of  the  Constitution  of  the  United  States  in 
regard  to  the  rights  of  their  citizens  were  in  force 
throughout  all  the  territory  belonging  to  the  United 
States.  He  further  contended  that  the  Constitu 
tion  recognized  the  rights  of  citizens  of  the  several 
States  to  hold  slaves,  and  that  consequently  until  a 
territory  was  admitted  into  the  Union  and  thereby 

1  For  convenience  of  the  reader,  reference  is  made  to  the  leading  de 
cisions  on  this  subject  :  De  Lima  vs.  Bidwell,  182  U.  S.,  i  (1901) ;  Downes 
vs.  Bidwell,  ibid.,  244(1901);  Huus  vs.  N.  Y.  and  Porto  Rico  SS.  Co., 
ibid.,  392  (1901);  Dooley  vs.  United  States,  183  U.  S.,  151  (1901);  Four 
teen  Diamond  Rings,  ibid.,  176  (1901)  ;  Hawaii  vs.  Mankichi,  190  U.  S., 
197  (1903)  ;  Gonzales  vs.  Williams,  192  U.  S.  I  (1904). 


Acquisition  of  New  Territory  75 

vested  with  the  exclusive  control  over  its  legal 
affairs,  citizens  of  those  States  within  which  slavery 
was  authorized  by  law  had  the  right  to  take  their 
slaves  into  all  parts  of  the  United  States  territory, 
not  admitted  into  the  Union  as  a  State. 

On  the  other  hand,  Mr.  Webster  maintained,  as 
he  did  in  the  Canter  case,  that  the  only  clause  of 
the  Constitution  which  by  its  own  force  was  ap 
plicable  to  the  territories  was  that  which  provides 
that  "  the  Congress  shall  have  power  to  dispose  of 
and  make  all  needful  rules  and  regulations  respect 
ing  the  territory  or  other  property,  belonging  to 
the  United  States."  Congress,  therefore,  had  the 
right  to  exclude  slavery  from  the  territories,  and  to 
make  all  needful  provision  for  their  government 
until  they  should  be  admitted  as  States.1 

1  The  debate  between  Webster  and  Calhoun  on  that  subject  in  the  Senate 
in  February,  1849,  states  the  argument  on  both  sides  clearly  and  has  an  im 
portant  bearing  on  the  relation  of  the  United  States  to  its  Insular  posses 
sions.  The  editor  of  the  last  edition  of  Webster's  Writings  and  Speeches 
has  done  public  service  in  reproducing  it  (vol.  xiv.,  pp.  323-335). 


CHAPTER  IX 

THE  UNITED  STATES  NOT  A  CONFEDERACY  BUT  A 
UNION REPLY  TO  MR.  HAYNE CARVER 

vs.  ASTOR'S  LESSEE 

THERE  is  one  case  of  a  purely  technical  nature, 
having  no  connection  whatever  with  constitutional 
law,  which  will  yet  be  forever  associated  with  that 
one  of  Mr.  Webster's  speeches  in  Congress  which 
at  the  time  of  its  delivery  probably  produced  the 
greatest  impression  of  any  of  his  speeches.  This 
was  his  reply  to  Hayne. 

There  was  under  consideration  in  the  Senate  a 
resolution  introduced  December  29,  1829,  by  Mr. 
Foot,  a  Senator  from  Connecticut,  instructing  the 
Committee  of  Public  Lands  to  consider  the  ex 
pediency  of  limiting  for  a  certain  period  the  sales 
of  public  lands.  Mr.  Benton,  of  Missouri,  took 
up  the  resolution  as  an  affront  to  the  new  States  of 
the  West,  and  Mr.  Hayne,  of  South  Carolina,  on 
the  i  gth  day  of  January,  1830,  made  it  the  occasion 
for  an  attack  upon  the  East. 

The  argument  of  the  case  of  Carver  against  John 
Jacob  Astor's  Lessee  and  others1  involved,  on  the 
other  hand,  the  construction  of  a  marriage  set- 

1  Reported  4  Peters,  i. 


United  States  a  Union  77 

tlement  and  the  old  English  law  of  shifting  uses 
and  executory  limitations.  It  also  involved  ques 
tions  purely  technical,  as  to  the  delivery  of  a  deed 
and  the  effect  of  recitals  in  it.  The  argument  in 
the  Supreme  Court  was  commenced  on  the  2oth  of 
January,  1830.  Mr.  Webster  was  in  court  the  day 
before  waiting  for  the  case  to  come  on.  After  the 
adjournment  he  went  into  the  Senate  and  heard 
the  greater  part  of  Mr.  Hayne's  speech.  He  rose 
to  reply  as  soon  as  it  was  completed,  but  the  Sen 
ate  adjourned  without  hearing  him,  and  he  spoke 
the  following  morning.  Mr.  Hayne's  attack  was 
entirely  unexpected,  and  Webster's  speech  on  his 
first  reply  was  made  with  no  opportunity  of  prep 
aration.  It  was,  however,  an  effective  defence  of 
New  England,  and  showed  the  great  benefits  that 
a  citizen  of  Massachusetts,  Nathan  Dane,  the  author 
of  the  celebrated  ordinance  of  1787,  for  establish 
ing  a  government  in  the  territory  northwest  of  the 
Ohio,  had  conferred  upon  that  portion  of  the  West 
by  this  admirable  constitutional  instrument.1 

The  next  day  some  of  Mr.  Webster's  friends 
endeavored  to  obtain  an  adjournment  of  the  Senate 
until  after  the  completion  of  the  argument  of  Car 
ver  against  Astor's  Lessee,  but  Mr.  Hayne  refused 
to  consent.  He  said :  "  He  would  not  deny  that 
some  things  had  fallen  from  him  [Mr.  Webster] 
which  rankled  here  [touching  his  breast]  from  which 
he  would  desire  at  once  to  relieve  himself.  The 

1  Those  who  are  fond  of  coincidences  may  be  interested  to  note  that  this 
first  reply  to  Hayne  was  delivered  on  the  same  day  as  Chatham's  speech  for 
the  Colonies  in  1775 — January  2Oth. 


78  Daniel  Webster 

gentleman  had  discharged  his  fire  in  the  presence 
of  the  Senate.  He  hoped  he  would  now  afford  him 
an  opportunity  of  returning  the  shot." 

Thereupon  Mr.  Webster  arose  and  said  : 

"  Let  the  discussion  proceed.  I  am  ready.  I 
am  ready  now  to  receive  the  gentleman's  fire." 

A  member  of  Congress  from  the  South,  who  was 
present,  said  it  was  impossible  to  describe  "  the 
true  grandeur  that  then  marked  his  manner  and 
countenance."  * 

As  soon  as  Mr.  Benton  had  finished  the  speech 
upon  the  resolution,  which  he  had  begun  the  day 
before,  Mr.  Hayne  arose  and  spoke  for  about  an 
hour.  By  this  time,  presumably,  his  emotions  had 
somewhat  relieved  themselves,  and  the  Senate 
granted  the  courtesy  which  its  great  member  had 
requested  and  adjourned  until  the  following  Mon 
day.  So  Mr.  Webster  went  back  to  the  Supreme 
Court.  He  delivered  his  own  argument  there  in 
the  Carver  case  on  the  22d,  and  on  Monday,  the 
25th,  Mr.  Hayne  completed  his  speech. 

^Beside  the  attack  on  New  England,  which  has 
no  longer  anything  but  a  remote  historical  interest, 
this  speech  contained  a  statement  of  the  argument 
which  had  by  this  time  come  to  be  an  article  of 
faith  in  South  Carolina,  and  was  obtaining  credence 
in  other  parts  of  the  country,  namely,  that  the 
Constitution  was  a  compact  between  sovereign 
States,  that  there  was  no  power  supreme  over 
these  sovereigns  to  determine  whether  or  not  a 
particular  act  of  Congress  was  an  infraction  of  the 

1  March,  Reminiscences  of  Congress,  115. 


United  States  a  Union  79 

compact ;  that  each  State,  therefore,  must  judge 
for  itself,  and  that  if,  in  the  exercise  of  this  sover 
eign  right  and  judgment,  it  came  to  the  conclusion 
that  a  particular  act  was  in  violation  of  the  com 
pact,  and  therefore  void,  it  could  lawfully  refuse 
obedience  to  the  obnoxious  statute,  or,  in  other 
words,  nullify  it.\  this  argument  was  advanced 
with  especial  reference  to  the  tariff  laws  which  had 
been  passed  in  1824  and  1828^  and  which  were 
avowedly  intended  to  encourage  the  development 
of  American  manufactures  by  the  imposition  of 
duties  upon  the  importation  of  foreign  goods.  Mr. 
£alhoun  had  originally  favored  this  so-called  pro 
tective  system1  and  Mr.  Webster  had  opposed  itj 
At  the  beginning  of  the  tariff  controversy  it  seems 
to  have  been  supposed  that  manufactures  might  be 
introduced  successfully  in  the  South.  At  that  time 
practically  the  entire  commerce  of  the  country  was 
carried  on  by  New  England  ships  and  sailors,  and 
anything  that  tended  to  impose  shackles  upon  this 
commerce  was  naturally  obnoxious  in  the  New  Eng 
land  States.  But  when  the  policy  of  a  high  protective 
tariff  was  decided  upon,  and  bills  for  that  purpose 
were  passed,  in  1824  and  1828,  large  amounts  of  capi 
tal  in  New  England  were  invested  in  manufactures. 

1  See  extracts  from  his  speeches  in  House  of  Representatives  in  April, 
1816,  Webster's  Works,  vol.  Hi.,  pp.  348-351. 

8  His  reasons  for  this  are  fully  stated  in  his  speech  in  the  House  of  Rep 
resentatives,  April,  1824  (Webster's  Works,  vol.  iii.,  p.  94).  See  also  his 
second  speech  on  the  tariff,  delivered  in  the  Senate  May  9,  1828  (Ibid., 
pp.  228-231).  I  know  of  nothing  on  the  subject  of  a  protective  tariff  better 
worth  study  than  those  two  speeches.  The  argument  for  free  wool,  for  ex 
ample,  has  never  been  better  or  more  temperately  stated  than  at  p.  135  of 
the  same  volume. 


8o  Daniel  Webster 

The  Hope  Mills,  in  Rhode  Island,  for  example, 
were  originally  built  at  that  time,  and  were  named 
for  the  ship  Hope,  which  the  original  proprietors 
of  those  mills  owned,  and  which  they  sold  for  the 
purpose  of  investing  the  proceeds  in  the  manufac 
tures  which  were  then  being  encouraged  by  acts 
of  Congress. 

On  the  other  hand  the  business  of  the  South 
remained  agricultural  The  system  of  slavery  did 
not  lend  itself  to  any  other  kind  of  business 
activity.  The  Southern  planters  discovered  that 
the  effect  of  the  tariff  laws  was  to  increase  the 
prices  of  the  goods  which  they  had  to  buy  for 
their  own  families  and  for  their  negroes,  and  a  great 
change  of  sentiment  took  place  in  the  South,  very 
naturally,  on  the  subject  of  the  tariff  laws. 

(An  examination  of  the  Constitution  showed 
plainly  enough  that  the  power  to  impose  tariff 
duties  for  a  purpose  other  than  that  of  revenue 
was  not  specifically  granted,.  The  strict  construc- 
tionists  therefore  denied  the  validity  of  the  tariff 
lawsj  and  the  State  of  South  Carolina  passed  acts 
intended  to  prevent  their  enforcement  at  the  port 
of  Charleston. 

0"he  question  of  secession  had  not  yet  come  to 
the  front."}  The  burdens  which  the  embargo  im 
posed  upon  the  commerce  of  New  England  had  in 
deed  led  some  of  the  New  England  people,  before 
the  War  of  1812,  to  consider  the  expediency  of  a 
dissolution  of  the  Union.1  But  still  the  right  of 

'It  is  worth  noting,  however,  that  when,  in  1811,  one  of  the  New 
England  representatives  spoke  of  secession  as  a  probable  consequence  of  the 


United  States  a  Union  81 

secession,  as  it  was  subsequently  discussed  and 
advocated,  can  hardly  be  said  to  have  been 
brought  prominently  to  the  public  attention  dur 
ing  the  years  before  1830.  /Nullification  was  the 
most  prominent  claim  at  that  time.  It  seemed  less 
drastic,  and  was  maintained  by  its  advocates  to  be 
consistent  with  the  continuance  of  the  union  of  the 
States.  ^  Hayne  had  put  the  argument  for  it  with 
great  plausibility,  and  a  certain  apprehension  cre 
ated  by  his  speech  spread  rapidly  through  the 
country.1 

It  was  on  the  26th  of  January  that  Mr.  Webster 
rose  to  reply.  He  spoke  in  what  was  then  the 
Senate  Chamber,  and  is  now  the  court-room  of  the 
Supreme  Court  of  the  United  States.  The  news 
that  he  was  to  speak,  and  on  such  a  topic,  had 
spread  abroad,  and  the  room  was  crowded  almost 
to  suffocation.  Indeed  to  any  one  now  standing  in 
the  room,  it  seems  impossible  that  even  with  the 
former  gallery,  it  could  have  ever  contained  so 
many  people,  as  those  who  are  said  to  have  assem 
bled  to  hear  Webster's  speech  in  reply  to  Hayne. 
That  speech  is  so  familiar,  that  it  is  unnecessary  here 
to  quote  from  it  at  length.  It  is  really  a  statement, 
in  eloquent  and  popular  form,  of  propositions  that 

passage  of  the  bill  for  the  admission  of  Louisiana  as  a  State,  the  Speaker, 
Joseph  B.  Varnum,  of  Massachusetts,  a  soldier  of  the  Revolution,  held 
that  "it  was  not  in  order  to  use  words  in  debate  which  threaten  the 
stability  of  the  Union." — March,  Reminiscences  of  Congress,  202. 

1 A  curious  instance  of  this  is  to  be  found  in  a  letter  to  Mr.  Webster, 
dated  March  10,  1830,  from  George  Hay,  Judge  of  the  United  States  Court 
for  the  Eastern  District  of  Virginia,  in  which  he  considers  the  constitutional 
rights  of  the  general  government  in  case  of  secession,  and  what  would 

constitute  treason.     The  original  letter  is  in  the  Congressional  Library. 
6 


82  Daniel  Webster 

Mr.  Webster  had  frequently  argued  in  the  Supreme 
Court  of  the  United  States. 

What  Chancellor  Kent  said  of  it  in  the  city  of 
New  York  at  a  public  dinner  given  on  the  loth  of 
March,  1831,  "to  express  the  sense  of  our  citizens 
of  the  importance  of  Mr.  Webster's  Congressional 
argument  "  is  strictly  true.1 

"  The  consequences  of  that  discussion  have  been  extremely 
beneficial.  It  turned  the  attention  of  the  public  to  the  great 
doctrines  of  national  rights  and  national  union.  Constitutional 
law  ceased  to  remain  wrapt  up  in  the  breasts  and  taught  only 
by  the  responses  of  the  living  oracles  of  the  law.  Socrates 
was  said  to  have  drawn  down  philosophy  from  the  skies  and 
scattered  it  among  the  schools.  It  may  with  equal  truth  be 
said  that  constitutional  law,  by  means  of  those  senatorial 
discussions,  and  the  master  genius  that  guided  them,  was  res 
cued  from  the  archives  of  our  tribunals  and  the  libraries  of 
lawyers,  and  placed  under  the  eye  and  submitted  to  the  judg 
ment  of  the  American  people.  Their  -verdict  is  with  us  and 
from  it  there  lies  no  appeal. ' ' 

In  Mr.  Webster's  speech  at  this  dinner,  he  gives 
an  admirable  summary  of  the  questions  which  had 
been  under  consideration  in  Congress,  and  of  the 
debate  upon  them.  He  shows  very  clearly,  that 

"the  judicial  power  under  the  Constitution  of  the  United 
States  was  made  co-extensive  with  the  legislative  power.  It 
was  extended  to  all  cases  arising  under  the  Constitution  and 
the  laws  of  Congress.  The  Judiciary  became  thus  possessed 
of  the  authority  of  deciding  in  the  last  resort,  in  all  cases  of 
alleged  interference  between  State  laws  and  the  Constitution 
and  laws  of  Congress.  Gentlemen,  this  is  the  actual  Constitu 
tion,  this  is  the  law  of  the  land." 

1  Webster's  Works,  vol.  i.,  p.  194. 


United  States  a  Union  83 

He  then  proceeds  to  show,  in  language  which  it 
is  almost  impossible  to  abbreviate,  that  the  argu 
ment  to  the  contrary  is  a  perverse  construction  of 
plain  language  in  the  body  of  the  Constitution  itself, 
and  then  goes  on  : 

"At  the  very  moment  when  our  Government  was  quoted, 
praised,  and  commended  all  over  the  world,  and  when  the 
friends  of  Republican  liberty  everywhere  were  gazing  at  it  with 
delight  and  were  in  perfect  admiration  at  the  harmony  of  its 
movements,  one  State  steps  forth,  and  by  the  power  of  nullifi 
cation,  breaks  up  the  whole  system  and  scatters  the  bright  chain 
of  the  Union  into  as  many  sundered  links  as  there  are  separate 
States. 

"  Seeing  the  true  grounds  of  the  Constitution  thus  attacked  I 
raised  my  voice  in  its  favor,  I  must  confess,  with  no  prepara 
tion  or  previous  intention.  I  can  hardly  say  that  I  embarked 
in  the  contest  from  a  sense  of  duty.  It  was  an  instantaneous 
impulse  of  inclination,  not  acting  against  duty,  I  trust,  but 
hardly  waiting  for  its  suggestions.  I  felt  it  to  be  a  contest  for 
the  integrity  of  the  Constitution,  and  I  was  ready  to  enter  into 
it,  not  thinking  or  caring  personally  how  I  might  come  out." 

He  then  proceeds  to  express  what  must  have 
been  to  him  an  almost  inexpressible  satisfaction  at 
the  success  of  the  argument : 

'  The  doctrines  of  nullification  have  received  a  severe  and 
stern  rebuke  from  public  opinion.  The  general  reprobation 
of  the  country  has  been  cast  upon  them.  Recent  expressions 
of  the  most  numerous  branch  of  the  national  legislature  are 
decisive  and  imposing.  Everywhere  the  general  tone  of  public 
feeling  is  for  the  Constitution."  * 

Perhaps  there  is  no  more  terse  expression  of  the 
great  effect  of  this  speech  than  is  to  be  found  in  a 

1  Webster's  Works,  vol.  i.,  pp.  209-211. 


84  Daniel  Webster 

letter  from  a  leading  citizen  of  Richmond,  John  H. 
Pleasants.1  It  is  dated  Richmond,  4th  March, 
1830: 

"DEAR  SIR: 

"Permit  me  to  congratulate  you  on  the  speech,  on  the  great 
sensation  it  has  produced  in  this  quarter,  so  flattering  to  your 
feelings,  and  the  effect  so  honorable  to  the  consistency  of  your 
public  conduct  and  your  ability  to  defend  it.  The  knowledge 
that  you  have  completely  vindicated  yourself,  floored  your  an 
tagonist,  and  gained  a  complete  victory  so  far  as  argument 
goes,  is  nearly  universal." 

In  our  day  it  would  be  thought  that  this  letter 
was  somewhat  remote  in  date  from  the  speech. 
But  in  1830  there  were  neither  telegraphs  nor 
railroads.  The  circulation  of  the  speech  was 
necessarily  slow.  No  doubt  the  readers  had  more 
leisure  to  examine  it  and  meditate  upon  it,  and 
probably  in  the  end  the  results  were  as  great  as 
those  which  are  produced  by  our  immediate  tele 
graphic  reports.2 

The  comparison  between  the  language  of  the 
speech  as  Webster  uttered  it  (or  at  least  as  it  was 
taken  down  by  the  shorthand  reporter),  and  that  in 
which  he  printed  the  speech  for  circulation,  is  so 
interesting  that  I  cannot  refrain  from  giving  them 
both.  The  first  is  as  follows 3 : 

"While  the  nation  lasts  we  have  a  great  prospect  of  pros 
perity,  and  when  this  Union  breaks  up  there  is  nothing  in 

1  Curtis's  Life  of  Webster,  vol.  i.,  p.  370. 

9  The  great  impression  which  this  reply  produced  upon  Mr.  Lincoln  is 
described  in  Herndon's  Lincoln  (Ed.  1889),  pp.  400,  478  ;  Thorpe,  Const. 
Hist.  U.  S.,  vol.  ii.,  p.  396. 

3  Webster  Centennial,  Dartmouth,  p.  135. 


United  States  a  Union  85 

prospect  for  us  to  look  at,  but  what  I  regard  with  horror  and 
despair.  God  forbid;  yes  sir,  God  forbid  that  I  should  live 
to  see  this  cord  broken;  to  behold  the  state  of  things  which 
carries  us  back  to  disunion,  calamity  and  civil  war.  When 
my  eyes  shall  be  turned  for  the  last  time  on  the  meridian  sun, 
I  hope  I  may  see  him  shining  bright  upon  my  united,  free  and 
happy  country.  I  hope  I  shall  not  live  to  see  his  beams  fall 
ing  upon  the  dispersed  fragments  of  the  structure  of  this  once 
glorious  Union.  I  hope  I  may  not  see  the  flag  of  my  country 
with  its  stars  separated  or  obliterated,  torn  by  commotion, 
smoking  with  the  blood  of  civil  war.  I  hope  I  may  not  see  the 
standard  raised  of  separate  state  rights,  star  against  star,  and 
stripe  against  stripe;  but  that  the  flag  of  the  Union  may  keep 
its  stars  and  its  stripes  corded  and  bound  together  in  indis 
soluble  ties.  I  hope  I  shall  not  see  written  as  its  motto 
'  First  Liberty  and  then  Union.'  I  hope  I  shall  see  no  such 
delusive  and  deluded  motto  on  the  flag  of  that  country.  I 
hope  to  see  spread  all  over  it,  blazoned  in  letters  of  light,  and 
proudly  floating  over  land  and  sea,  that  other  sentiment, 
dear  to  my  heart,  'Union  and  Liberty,  Now  and  Forever,  One 
and  Inseparable. '  ' 

As  the  speech  was  published,  the  peroration  was 
in  the  following  form  '  : 

"While  the  Union  lasts,  we  have  high,  exciting,  gratifying 
prospects  spread  out  before  us,  for  us  and  our  children.  Be 
yond  that  I  seek  not  to  penetrate  the  veil.  God  grant  that  in 
my  day  at  least  that  curtain  may  not  rise.  God  grant  that  on 
my  vision  never  may  be  opened  what  lies  behind.  When  my 
eyes  shall  be  turned  to  behold  for  the  last  time  the  sun  in 
heaven,  may  I  not  see  him  shining  on  the  broken  and  dis 
honored  fragments  of  a  once  glorious  Union;  on  States  dis 
severed,  discordant,  belligerent;  on  a  land  rent  with  civil 
feuds  or  drenched,  it  may  be,  in  fraternal  blood.  Let  their 
last  feeble  and  lingering  glance  rather  behold  the  gorgeous  en 
sign  of  the  republic,  now  known  and  honored  throughout  the 

'Webster's  Works,  vol.  iii.,  p.  342. 


86  Daniel  Webster 

earth,  still  full  high  advanced,  its  arms  and  trophies  streaming 
in  their  original  lustre,  not  a  stripe  erased  or  polluted,  nor  a 
single  star  obscured,  bearing  for  its  motto,  no  such  miserable 
interrogatory  as  'What  is  all  this  worth  ? '  nor  those  other  words 
of  delusion  and  folly,  '  Liberty  first  and  Union  afterwards ' ; 
but  everywhere,  spread  all  over  in  characters  of  living  light, 
blazing  on  all  its  ample  folds,  as  they  float  over  the  sea  and 
over  the  land,  and  in  every  wind  under  the  whole  heavens, 
that  other  sentiment,  dear  to  every  true  American  heart — 
'  Liberty  and  Union,  Now  and  Forever,  One  and  Inseparable.'  " 

An  illustration  of  the  careful  way  in  which  Mr. 
Webster  prepared  the  oration  for  publication  is  to 
be  found  in  a  letter  of  Edward  Everett,  dated  Janu 
ary  26,  1830  1  : 

"When  you  come  to  the  '  standard  of  the  Union  '  in  the 
peroration,  look  at  what  was  floating  in  your  mind — Milton's 
description  of  the  infernal  banner  in  the  lower  regions,  float 
ing  across  the  immensity  of  space,  which  is  in  turn  borrowed 
from  Tasso's  description  of  the  banner  of  the  Crusades,  when 
first  unfolded  in  Palestine." 

Another  reference  to  the  revision  for  the  press 
of  the  shorthand  notes  is  to  be  found  in  a  letter 
from  Mr.  Webster  to  his  old  friend,  Jeremiah 
Mason,  written  in  Washington,  February  27, 
1830: 

' '  The  press  has  sent  abroad  all  I  said  in  the  late  debate, 
and  you  will  have  seen  it.  I  have  paid  what  attention  I  could 
to  the  reporter's  notes;  but  in  the  midst  of  other  pressing  en 
gagements,  I  have  not  made  either  speech  what  it  ought  to  be; 
but  let  them  go.  The  whole  matter  was  quite  unexpected.  I 
was  busy  with  the  Court,  and  paying  no  attention  to  the  de 
bate,  which  was  going  on  sluggishly  in  the  Senate,  without 

1  Letters  of  Webster,  Van  Tyne,  p.  146. 


United  States  a  Union  87 

exciting  any  interest.  Happening  to  have  nothing  to  do  for 
the  moment  in  Court  I  went  into  the  Senate  and  Mr.  Hayne, 
so  it  turned  out,  just  then  rose.  When  he  sat  down,  my 
friends  said  he  must  be  answered,  and  I  thought  so  too,  and 
being  thus  got  in,  thought  I  must  go  through.  It  is  singular 
enough,  though  perhaps  not  unaccountable,  that  the  feeling  of 
this  little  public  is  all  on  our  side.  I  may  say  to  you  that  I 
never  before  spoke  in  the  hearing  of  an  audience,  so  excited, 
so  eager  and  so  sympathetic."  ' 

In  a  brief  reply  to  Mr.  Hayne's  rejoinder,  Mr. 
Webster  summed  up  the  argument  in  a  speech  com 
prising  only  five  pages  of  his  printed  works,  from 
which  we  must  quote  briefly,  for  it  summarizes  the 
argument  on  both  sides  in  masterly  fashion.  Of 
Mr.  Hayne's  argument  he  says  : 

"  His  propositions  are: 

"  i.  That  the  Constitution  is  a  compact  between  the  States: 

"2.  That  a  compact  between  two,  with  authority  reserved 
to  one  to  interpret  its  terms,  would  be  a  surrender  to  that  one 
of  all  power  whatever. 

"3.  Therefore  (such  is  his  inference,)  the  general  govern 
ment  does  not  possess  the  authority  to  construe  its  own 
powers. ' ' 

To  this  Webster  replies  : 

"The  Constitution,  it  is  said,  is  a  compact  between  States. 
The  States  then,  and  the  States  only,  are  parties  to  the  com 
pact.  How  comes  the  general  government  itself  a  party. 
Upon  the  honorable  gentleman's  hypothesis,  the  general  gov 
ernment,  is  the  result  of  the  compact,  the  creature  of  the 
compact,  not  one  of  the  parties  to  it.  Yet  the  argument  as  the 
gentleman  has  now  stated  it,  makes  the  government  itself  one 
of  its  own  creators.  It  makes  it  a  party  to  that  compact  to 
which  it  owes  its  own  existence. 

1  Webster's  Private  Correspondence,  vol.  i.,  p.  488. 


88  Daniel  Webster 

"While  the  gentleman  is  contending  against  construction, 
he  himself  is  setting  up  the  most  loose  and  dangerous  con 
struction.  The  Constitution  declares  that  the  laws  of  Congress 
passed  in  pursuance  of  the  Constitution,  shall  be  the  supreme  law 
of  the  land.  No  construction  is  necessary  here.  "It  de 
clares  also,  with  equal  plainness  and  precision,  that  the  judicial 
power  of  the  United  States  shall  extend  to  every  case  arising 
under  the  laws  of  Congress.  This  needs  no  construction. 
Here  is  a  law,  then,  which  is  declared  to  be  supreme;  and  \J 
here  is  a  power  established,  which  is  to  interpret  that  law. 
Now  Sir,  how  has  the  gentleman  met  this  ?  Suppose  the  Con 
stitution  to  be  a  compact,  yet  here  are  its  terms,  and  how  does 
the  gentleman  get  rid  of  them  ?  He  cannot  argue  the  seal  off 
the  bond,  nor  the  words  out  of  the  instrument.  Here  they  are. 
What  answer  does  he  give  to  them?  None  in  the  world,  Sir, 
except  that  the  effect  of  this  would  be  to  place  the  states  in  a 
condition  of  inferiority;  and  that  it  results  from  the  very 
nature  of  things,  there  being  no  superior,  that  the  parties  must 
be  their  own  judges. 

"  So  then,  Sir,  even  supposing  the  Constitution  to  be  a  com 
pact  between  the  states,  the  gentleman's  doctrine  nevertheless, 
is  not  maintainable,  because — first,  the  general  government  is 
not  a  party  to  that  compact,  but  a  government  established  by  it 
and  vested  by  it  with  the  powers  of  trying  and  deciding  doubt 
ful  questions;  and  secondly,  because,  if  the  Constitution  be 
regarded  as  a  compact,  not  one  state  only,  but  all  the  states, 
are  parties  to  that  compact,  and  one  can  have  no  right  to  fix 
upon  it  her  own  peculiar  construction. 

"  But  Sir,  the  gentleman  has  failed  to  maintain  his  leading 
proposition.  He  has  not  shown — it  cannot  be  shown  that  the 
Constitution  is  a  compact  between  state  governments.  The 
Constitution  itself,  in  its  very  front,  refutes  that  idea;  it  de 
clares  that  it  is  ordained  and  established  by  the  people  of  the 
United  States.  .  .  .  The  gentleman  says,  it  must  mean  no 
more  than  the  people  of  the  several  states.  Doubtless,  the 
people  of  the  several  states,  taken  collectively,  constitute  the 
people  of  the  United  States;  but  it  is  in  this,  their  collective 
capacity,  it  is  as  all  the  people  of  the  United  States,  that  they 


United  States  a  Union  89 

establish  the  Constitution.     So  they  declare ;  and  words  cannot 
be  plainer  than  the  words  used. 

"  When  the  gentleman  says  the  Constitution  is  a  compact 
between  the  States,  he  uses  language  exactly  applicable  to  the 
old  Confederation.  He  speaks  as  if  he  were  in  Congress  before 
1789.  He  describes  fully  that  old  state  of  things  then  existing. 
The  Confederation  was,  in  strictness,  a  compact;  the  States,  as 
states,  were  parties  to  it.  We  had  no  other  general  govern 
ment.  But  that  was  found  insufficient,  and  inadequate  to  the 
public  exigencies.  The  people  were  not  satisfied  with  it,  and 
undertook  to  establish  a  better.  They  undertook  to  form  a 
general  government,  which  should  stand  on  a  new  basis;  not 
a  confederacy,  not  a  league,  not  a  compact  between  States,  but 
a  Constitution;  a  popular  government  founded  in  popular 
election,  directly  responsible  to  the  people  themselves,  and 
divided  into  branches  with  prescribed  limits  of  power,  and 
prescribed  duties.  They  ordained  such  a  government,  they 
gave  it  the  name  of  a  Constitution,  and  therein  they  established 
a  distribution  of  powers  between  this,  their  general  govern 
ment,  and  their  several  State  governments.  When  they  shall 
become  dissatisfied  with  this  distribution,  they  can  alter  it. 
Their  own  power  over  their  own  instrument  remains.  But 
until  they  shall  alter  it,  it  must  stand  as  their  will,  and  is 
equally  binding  on  the  general  government  and  on  the 
states."  l 

In  an  unpublished  letter  to  William  Pope,  of 
Virginia,  written  April  13,  1830,  occurs  the  follow 
ing  passage  which  may  be  compared  with  Webster's 
statement  in  the  Senate  twenty  years  later  {post, 
p.  172).  During  all  these  twenty  years  he  never 
wavered  in  his  devotion  to  the  spirit  of  nation 
ality,  felt  and  expressed  alike  at  forty-eight  and  at 
sixty-eight 

The  letter  itself   illustrates  very  well  the  cor- 

1  Webster's  ,Works^  vol.  iii.,  pp.  343,  346. 


90  Daniel  Webster 

respondence    occasioned    by    the    great    reply   to 
Hayne  : 

"WASHINGTON,  April  13,  1830. 
"  MY  DEAR  SIR: 

"  I  thank  you  for  your  kind  and  friendly  letter  of  the  i2th 
inst.  The  incidents  you  narrate,  relative  to  the  campaign  of 
1781,  are  interesting,  and  excite  strong  patriotic  feeling.  In 
deed,  my  dear  Sir,  of  all  unnatural  things,  spleen  and  jeal 
ousy,  between  the  Southern  States  and  New  England,  are  the 
most  unnatural.  They  have  been  excited,  ex  industria,  for 
paltry  party  purposes. 

"  I  hope  you  will  obtain  Mr.  Wirt's  consent  to  publish  parts 
of  his  letter.  He  is  a  great  favorite  with  us  in  New  England. 
In  truth  there  is  not  a  distinguished  Virginian  in  being,  Mr. 
Madison,  Mr.  Jus.  Marshall,  Mr.  Wirt,  or  any  other  promi 
nent  man,  who  has  kept  clear  of  the  topics  of  modern  strife, 
who  is  not  as  highly  regarded  in  New  England,  as  in  Virginia 
herself.  And  why  should  it  not  be  so  ?  Why  should  we 
localize  our  feelings  ?  Why  should  we  cut  up  and  divide  our 
patriotism  as  we  do  the  public  lands,  into  sections,  half 
sections,  quarter  sections,  and  half  quarter  sections  ? 

' '  For  my  part  Americanus  sum  et  nihil  Americanum  mihi 
alienumputo. 

' '  I  am  with  much  regard, 

' '  Yours, 

"DANL.  WEBSTER. 
"  WM.  POPE,  Esq. 

"  I  believe  some  of  our  friends  intend  to  send  you  a  dozen 
copies  of  my  speech,  for  any  of  yr.  neighbors  who  may  desire 
to  read  it." 

The  practice  of  circulating  speeches,  printed  at  a 
government  printing-office,  had  not  at  that  time 
begun.  Congressmen  or  their  friends  printed  any 
speeches  they  chose  to  pay  for.  Of  this  second 


United  States  a  Union  91 

speech  the  National  Intelligencer  alone  printed 
forty  thousand  copies,  and  twenty  editions  were 
printed  by  other  papers. 

A  curious  illustration  of  the  effect  upon  the 
minds  of  the  young  men  of  America  produced  by 
these  speeches  on  Foot's  resolution,  is  to  be  found 
in  a  letter  from  Webster's  son,  Fletcher,  to  his 
father,  dated  March  23,  1830: 

"  I  never  knew  what  the  Constitution  really  was  till  your  last 
short  speech.  I  thought  it  was  a  compact  between  states.  I 
like  that  last  reply  better  than  all  the  rest,  for  it  comes  out  so 
a  propos  and  conclusive,  that  Mr.  Hayne  has  nothing  more  to 
say.  It  is  the  coup  de  grace.  It  winds  him  up,  as  we  boys 
used  to  say." 

At  this  same  January  term  of  the  Supreme 
Court,  Mr.  Webster  argued  twelve  other  cases,  in 
volving  a  great  variety  of  questions,  besides  con 
stant  attention  to  his  duties  as  a  Senator. 

Q^othing  illustrates  more  vividly  the  extraordinary 
variety  of  Mr.  Webster's  acquirements  and  powers, 
than  a  comparison  between  his  legal  arguments  and 
his  speeches  in  Congress.  The  former  related  to 
every  branch  of  the  law,  even  to  that  involving  the 
validity  and  construction  of  patents.  The  latter 
related  not  only  to  the  Constitution  of  his  country, 
but  to  her  foreign  relations,  the  tariff,  finance,  pub 
lic  improvements.  He  touched  no  subject  that  he 
did  not  illumine.  He  was  in  truth  a  myriad-minded 
man,  and  of  all  the  lawyers  and  statesmen  of  his 
time  left  the  most  permanent  impression.  Every 

1  Letters  of  Webster,  Van  Tyne,  p.  151. 


92  Daniel  Webster 

student  of  the  political  questions  of  to-day  should 
consult  his  works.) 

In  the  latest  of  his  cases  at  this  term,  he  appeared 
for  his  old  client  "  The  Society  for  the  Propagation 
of  the  Gospel  in  Foreign  Parts."  1  In  this  case  he 
maintained  successfully  that  a  foreign  corporation, 
all  the  members  of  which  are  beyond  seas,  is  within 
the  exception  of  the  statute  of  limitations.  Refer 
ence  is  made  to  this  here,  as  it  was  to  the  case 
of  Carver  against  Astor's  Lessee,  solely  for  the 
purpose  of  drawing  attention  to  the  fact  thaty^Veb- 
ster  was  not  only  a  constitutional  lawyer  and  states 
man,  but  a  thoroughly  trained  and  equipped  master 
of  all  branches  of  his  great  professions 

.    !  Society,  etc.  vs.  The  Town  of  Pawlet,  4  Pefers,  480. 


CHAPTER  X 

THE     UNITED     STATES     A     UNION,      NOT     A      CONFED 
ERACY SUBJECT    CONTINUED REPLY 

TO    CALHOUN 

CHANCELLOR  KENT,  on  the  tenth  of  March,  1831, 
expressed  the  sentiment  of  probably  a  majority  of 
the  American  people  when  he  addressed  Mr.  Web 
ster  in  the  language  already  quoted  (ante,  p.  82  ).* 
His  concluding  sentence  (referring  to  the  American 
people)  :  "  Their  verdict  is  with  us,  and  from  it, 
there  lies  no  appeal,"  was  unfortunately  too  opti 
mistic.  If  we  may  follow  the  Chancellor's  exam 
ple,  and  adopt  a  legal  figure,  the  nullifiers  moved 
for  a  new  trial.  The  States'  Rights  party  in  South 
Carolina  held  a  celebration  on  the  Fourth  of  July, 
1831,  in  which  their  claims  were  stoutly  maintained. 
The  agitation  continued  in  other  States  besides 
South  Carolina.  As  Webster  wrote  Clay  from 
Boston,  on  the  fifth  of  October  (1831),  in  refer 
ence  to  the  approaching  session  of  Congress : 

4  The  Constitution  itself  in  its  elementary  and  fundamental 
provisions  will  be  assailed  with  talent,  vigor  and  union. 
Everything  is  to  be  debated  as  if  nothing  had  ever  been  settled. 

'Webster's  Works,  vol.  i.,  p.  194. 
93 


94  Daniel  Webster 

.     .     .    Everything  valuable  in  the  Government  is  to  be  fought 
for,  and  we  need  your  arm  in  the  fight."  * 

Unfortunately,  Clay's  arm  at  this  time  was  em 
ployed  in  the  task  of  compromise.  Although  he 
was  the  father  of  the  so-called  "American  protective 
system,"  yet  he  was  willing  to  give  it  up,  in  order 
to  pacify  the  nullifiers.  In  1833,  he  did  frame  a 
tariff  bill  in  which  provision  was  made  for  a  gradual 
reduction  of  the  tariff  to  a  revenue  basis  only. 

Meanwhile,  in  November,  1832,  the  State  of 
South  Carolina  adopted  what  was  commonly  called 
the  Nullification  Ordinance.  This  declared  that 
the  tariff  acts  of  1828  and  1832  were  null  and  void, 
and  named  the  first  day  of  February,  1833,  as  the 
day  when  they  should  cease  to  be  "  binding  upon 
this  State,  its  officers  or  citizens."  On  the  tenth 
day  of  December,  1832,  Andrew  Jackson,  who  was 
then  President  of  the  United  States,  issued  a  pro 
clamation,  in  which  he  declared  that  this  Nullifica 
tion  Ordinance  would  be  entirely  disregarded  by 
the  federal  authorities,  and  that  he  would  enforce 
the  laws  for  the  collection  of  duties  upon  imports 
in  South  Carolina,  in  spite  of  it.  Of  the  effect  of 
this  proclamation,  Mr.  Webster  writes  to  William 
Sullivan,  January  3,  i8332: 

"  At  the  present  moment  it  would  seem  that  public  opinion, 
and  the  stern  rebuke  by  the  executive  government,  had,  in  a 
great  measure,  suppressed  the  immediate  danger  of  nullifica 
tion.  As  far  as  we  see  the  results  of  the  legislation  of  South 
Carolina,  her  laws  limp  far  behind  her  ordinance.  For  aught 
that  appears,  nothing  will  interrupt  the  ordinary  collection  of 

1  Clay's  Works,  vol.  iv.,  p.  318.  2  Private  Corr.,  vol.  i.,  p.  328. 


United  States  a  Union  95 

duties  after  February  ist,  unless  some  individual  chooses  to 
try  the  nullifying  remedy." 

Shortly  before  this,  Colonel  Hayne  had  resigned 
his  seat  in  the  Senate  and  been  elected  Governor 
of  South  Carolina.  Calhoun,  who  had  been  elected 
Vice-President  on  the  same  ticket  with  Jackson  in 
1828,  but  had  broken  off  friendly  relations  with 
his  chief,  resigned  the  Vice-Presidency,  was  elected 
Senator  from  South  Carolina  and  took  his  seat 
January  4,  1833.  It  was  felt  by  his  friends  that  he 
was  the  ablest  advocate  of  the  States'  Rights  doc 
trine,  and  that  he  could  measure  swords  with  Web 
ster  without  fear  of  defeat.  He  opened  fire  on  the 
Administration  on  the  sixteenth  of  January.  On 
the  twenty-first  of  that  month,  Mr.  Wilkins,  of 
Pennsylvania,  the  Chairman  of  the  Judiciary  Com 
mittee,  introduced  in  the  Senate  a  bill  to  enlarge 
the  power  of  the  Executive  in  enforcing  the  laws 
for  the  collection  of  duties  on  imports.  This  bill 
was  commonly  known  as  the  Force  Bill.  Calhoun 
was  the  leader  of  the  opposition.  He  introduced 
in  the  Senate  resolutions  expressing  his  theory  of 
the  nature  of  our  government,  and  delivered  an 
acute  and  skilfully  reasoned  speech  in  their  sup 
port.  In  reply  to  him,  and  on  the  sixteenth  of 
February,  1833,  Webster  made  one  of  his  most 
carefully  considered  and  effective  arguments,  of 
which  the  following  brief  extract  will  give  the  main 
points  as  Webster  himself  stated  them  : 

"The  gentleman's  resolutions,  then,  affirm  in  effect  that 
these  twenty-four  United  States  are  held  together,  only  by  a 


96  Daniel  Webster 

subsisting  treaty,  resting  for  the  fulfilment  and  continuance  on 
no  inherent  power  of  its  own,  but  on  the  plighted  faith  of  each 
State.1  .  .  . 

"And  now,  Sir,  against  all  these  theories  and  opinions,  I 
maintain : 

"  i.  That  the  Constitution  of  the  United  States  is  not  a 
league,  confederacy  or  compact  between  the  people  of  the 
several  States  in  their  sovereign  capacities;  but  a  government 
proper,  founded  on  the  adoption  of  the  people,  and  creating 
direct  relations  between  itself  and  individuals. 

"  2.  That  no  State  authority  has  power  to  dissolve  these 
relations;  that  nothing  can  dissolve  them  but  revolution;  and 
that  consequently  there  can  be  no  such  thing  as  secession 
without  revolution. 

"  3.  That  there  is  a  supreme  law,  consisting  of  the  Constitu 
tion  of  the  United  States,  acts  of  Congress  passed  in  pursuance 
of  it,  and  treaties;  and  that  in  cases  not  capable  of  assuming 
the  character  of  a  suit  in  law  or  equity,  Congress  must  judge 
of  and  finally  interpret  this  supreme  law  so  often  as  it  has 
occasion  to  pass  acts  of  legislation;  and  in  cases  capable  of 
assuming,  and  actually  assuming,  the  character  of  a  suit,  the 
Supreme  Court  of  the  United  States  is  the  final  interpreter. 

' '  4.  That  an  attempt  by  a  State  to  abrogate,  annul,  or  nullify 
an  act  of  Congress,  or  to  arrest  its  operation  within  her  limits, 
on  the  ground  that,  in  her  opinion,  such  law  is  unconstitutional, 
is  a  direct  usurpation  on  the  just  powers  of  the  general  govern 
ment,  and  on  the  equal  rights  of  other  States,  a  plain  violation 
of  the  Constitution,  and  a  proceeding  essentially  revolutionary 
in  its  character  and  tendency."  * 

He  puts  the  questions  thus  : 

'  The  people  have  ordained  a  Constitution:  can  they  reject 
it  without  revolution  ?  They  have  established  a  form  of  gov 
ernment  ;  can  they  overthrow  it  without  revolution  ?  These 
are  the  true  questions." 

'Webster's  Works,  vol.  iii.,  p.  457. 

*  Webster's  Works,  vol.  iii.,  pp.  464,  465. 


United  States  a  Union  97 

There  still  remains  in  Mr.  Webster's  own  hand 
writing  his  brief  for  this  speech.1  It  is  perhaps  the 
most  elaborate  brief,  now  extant,  of  any  of  his  ar 
guments,  and  deserves  to  be  printed  in  full. 

'  Two  first  Resolutions  affirm  these  propositions. 

"  i.  That  the  system,  under  which  we  live,  and  under  which 
Congress  is  assembled,  is  a  compact,  to  which  the  people  of 
the  several  States,  as  separate  and  sovereign  communities,  are 
the  parties. 

"2.  That  these  Sovereign  Parties  have  a  right  to  judge, 
each  for  itself,  of  any  alleged  violation  of  the  Constitution  by 
Congress,  and  to  choose  their  own  mode  of  redress. 

"  46T"  'Constitutional  Compact.''  ''Accede'  .  .  .  a  compact 
between  Sovereign  Communities,  however  qualified  as  being  a 
constitutional  compact,  is,  after  all,  but  a  league.  As  between 
communities,  entirely  sovereign,  there  is  no  difference  between, 
a  compact,  a  confederacy,  and  league.  They  all  rest  on  plighted 
sovereign  faith.  A  league  is  no  more  than  a  continuing,  sub 
sisting  treaty. 

"  .  .  .  The  Resolutions,  then,  affirm,  ist  that  these  U. 
States  are  connected  together  solely,  by  a  continuing,  or  sub 
sisting  treaty  .  .  .  by  a  league. 

"  .  .  .  The  next  proposition  is,  that  as  sovereigns  are 
subject  to  no  superior  power,  they  must  of  course  judge,  and 
decide,  each  for  itself,  of  any  alleged  violation  of  the  obliga 
tions  subsisting  between  them;  and  if  such  violation  be  sup 
posed  to  have  occurred,  each  may  adopt  any  mode  or  measure 
of  redress,  which  it  thinks  proper. 

"If  a  league,  between  sovereigns,  have  no  limitation,  in 
point  of  time,  and  contain  nothing  making  it  perpetual,  it  sub 
sists  only  during  the  good  pleasure  of  the  parties,  altho  no 
violation  of  it  be  complained  of. 

".  .  .  If,  in  the  opinion  of  either  party  it  be  broken, 
then  the  injured  party  has  a  right  to  say,  he  will  not  per 
form  any  or  see  her  own  obligations  under  it;  or  to  consider 

1  Library  N.  H.  Historical  Soc.,  Websteriana,  vol.  xvi.,  pp  40-43. 


98  Daniel  Webster 

altogether  at  an  end,  tho'  it  were  professsed  to  be  perpetual; 
so  Congress  considered  the  French  Treaty,  in  1798. 

"  .  .  .  And  if  this  violation  of  the  league  be  accom 
panied  with  serious  and  aggravated  injuries,  the  suffering  party 
has  a  right  to  make  reprisals,  and  to  make  war;  because  he 
is  himself  to  judge  of  his  own  mode  and  measure  of  redress. 

"  The  plain  and  necessary  import  of  the  Resolutions,  then, 
is, 

"  That  the  States  are  connected  only  by  a  league;  that  any 
State  may  determine  when  the  league  is  violated ;  and  that  she 
may  redress  the  violation  herself,  in  any  way,  fit  for  a  sovereign 
power;  and  an  equally  plain  consequence  from  the  Resolutions 
is,  that  the  league  may  be  abandoned  w't.  cause,  at  the  pleasure 
of  either  party.  So.  Carolina  may  make  reprisals  on  Georgia; 
and  seize  g'l.  p'py  of  all  the  States. 

"  .  .  .  If  this  be  our  political  condition,  it  is  time  the 
people  knew  it.  Secession  is  one  mode  of  redress. 

"  .  .  .  One  State,  holding  the  embargo  law  unconstitu 
tional,  may  so  declare  her  opinion,  and  withdraw:  she  secedes, 
and  makes  reprisal,  another,  having  the  same  opinion  of  the 
revenue  laws,  withdraws,  for  the  same  reason.  .  .  .  She 
secedes,  and  makes  reprisals  for  '  Robbery. ' 

"  .  .  .  But,  the  Constitution,  in  the  opinion  of  a  third 
State,  may  be  violated  by  omitting  to  pass  laws.  She  may 
say,  she  went  into  the  Constitution,  and  gave  up  her  own 
power  over  imposts,  because  Genl.  Govt.  undertook  to  exercise, 
for  protection.  This  was  the  clear  opinion  of  Congress.  Con 
stitutional  law  is  broken  by  the  relinquishment  of  this  power 
.  and  so,  she  secedes. 

"  .  .  .  No  law,  therefore,  can  be  binding  on  all  the 
States,  the  constitutionality  of  which  is  not  admitted  by  all  the 
States. 

"  Under  the  old  Confederation,  all  the  States  were  bound, 
by  the  decision  of  p,  on  any  question  under  it.  Under  this 
'more  perfect  union,'  the  consent  of  all,  on  constitutional 
questions,  is  necessary  to  bind  all. 

"  .  .  .  Va.  may  secede,  and  hold  the  fortress  in  the 
Chesapeake. 


United  States  a  Union  99 

"  .  .  .  Mass,  may  secede,  and  hold  the  forts  in  her 
harbours  and  the  public  arsenals  and  armories 

"  .  .  .  The  Western  States  may  secede,  and  hold  the 
public  lands. 

"  .  .  .  Louisiana  may  secede,  and  hold  the  mouth  of  the 
Mississippi. 

"If  one  State  may  secede,  ten  may — 20  may 
Twenty-three  may.  What  constitutes,  then,  the  U.  S.  ? 
Where  will  be  the  army  ?  where  the  Navy?  ...  If  So. 
Carolina  goes  off,  does  she  mean  to  demand  partition,  and 
take  a  schooner  and  a  sloop  with  her  ?  Who  will  pay  the  debts  ? 
Who  fulfil  the  public  Treaties  ?  We  have  treaties,  by  which 
the  ports  of  Carolina,  are  open,  on  specific  terms,  to  the 
nations  of  Europe.  Who  fulfils  them,  after  secession  ? 

' '  Who  will  guaranty  to  S.  Carolina  a  Republican  Govt.  ? 

"  Everybody  must  see,  that  these  are  questions  which  arise 
only  after  a  Revolution.  Nothing  but  a  Revolution  can  give 
rise  to  them.  Secession,  THEREFORE,  is  REVOLUTION:  ad 
mitted,  I  think. 

"  NULLIFICATION  is  REVOLUTIONARY.  What  is  Revolu 
tion  ?  That  which  overturns,  or  controls,  the  existing  public 
authority;  that  which  arrests  the  exercise  of  the  supreme 
power;  that  which  introduces  a  new  permanent  power,  into 
the  rule  of  the  State. 

"  Now,  this  is  the  object  of  nullification. 

"  It  supersedes  the  Supreme  Legislative  Authority.  It  ar 
rests  the  arm  of  Executive  officers.  ...  It  interrupts  the 
operation  of  the  judicial  powers?.  ...  Is  not  this  Revo 
lutionary  ?  Within  So.  C.  it  accomplishes,  portends,  a 
Revolution. 

"Alter  sec.,  U.  S.  Legislation,  in  its  principal  pt.  has  no 
favor  there  .  .  .  nor  the  Prest.  nor  the  Courts. 

"  SST'So  soon  as  ordinance  executed,  as  complete  a  Rev.  as 
American  Rev. 

"  And  its  direct  tendency  is  to  break  up  the  whole  union. 

"  Constitution  of  U.  S.  was  accepted  as  a  whole.  On  the 
whole  Instrument,  as  a  whole,  a  majority  of  the  people  and  of 
the  States  have  given  an  interpretation. 


ioo  Daniel  Webster 

"  .  .  .  S.  C.  opposes  this.  She  opposes  what  the  ma 
jority  says  is  the  Constitution,  and  the  laws. 

"  .  .  .  She  resists,  as  to  herself,  an  Act  of  Congress, 
bearing  on  all  the  States,  as  well  as  herself. 

"  t&~ ...  If  unconstitutional,  as  to  her,  the  same  as  to 
the  rest.  She  construes  the  law  for  all,  and  breaks  it  for 
all. 

"  If  successfully  resisted  by  So.  Carolina,  it  must  be  sur 
rendered  everywhere.  This  plain.  And  it  is  the  whole 
Revenue  of  U.  S. 

"She  aims  a  blow,  therefore,  at  the  vitality  of  the  whole 
system. 

"  The  direct  tendency  of  her  act,  is  to  overthrow  the  Govt. 

"  If  her  ordinance  and  law  are  not  suppressed,  they  neces 
sarily  produce  a  Revolution. 

"  S®~  What  shows  this  more  clearly,  still,  is,  that  So.  Caro 
lina  nullifies,  that  very  precise  power,  for  which  the  Const, 
was  formed,  viz. :  the  levying  of  imposts,  independent  of  the  will 
of  the  States. 

"Nullification  is  Revolutionary,  because  Nullification  by 
force  (and  this,  as  will  appear  is  by  force)  is  treason.  In  what 
does  treason  consist  ? 

"  These  are  plain  results  of  the  principles  of  the  Rev.  altho 
So.  Carolina  complains  that  she  is  misunderstood;  and  Va. 
resolves  that  she  is  misunderstood. 

"  .  .  .  A  right  to  judge,  by  a  State,  for  itself,  necessarily 
leads  to  force. 

"  .  .  .  Because  every  State  must  have  the  same  right, 
and  they  will  differ  in  their  contentions. 

"  .  .  .  Each  State,  on  entering  into  the  Union,  gave  up 
a  part  of  its  own  exclusive  power  over  itself. 

"  .  .  .  The  consideration  for  this,  was,  that  it  gained  a 
partial  power  in  legislating  for  other  States. 

".  .  .  Mass,  gave  up  the  right  to  levy  imposts ;  because 
she  claimed  the  right  of  uniting  with  others,  in  levying  im 
posts,  for  the  whole  union. 

"  .  .  .  If  So.  Carolina  denies  this,  she  breaks  the  condition 
only  on  which  Mass,  entered  into  the  union. 


United  States  a  Union  101 

"  .  .  .  If  one  State  may  declare  a  law  unconstitutional 
another  may  declare  it  constitutional  ...  if  each  may 
claim  its  own  mode  of  redress  .  .  .  each  may  make  war. 

"  No  presumption,  in  favor  of  unconstitutionality . 

" .  .  .  This  doctrine,  instead  of  being  favorable  to  mi 
norities  is  destructive  of  their  rights  .  .  .  because  it  ulti 
mately  refers  to  some.  Polyglot. 

"  Two  sides  of  the  Union: 

"  Mr.  Calhoun's  proposition:  States  may  judge  of  extent  of 
individual  obligation. 

"  If  so,  then  of  Individual  Right.  STATE  RIGHT — Guaranty 
and  State  OBLIGATION.  Laws  imposing  contracts.  Bills  of 
credit  .  .  . 

' '  //  annihilates  the  whole  list  of  prohibitive s. 

' '  This  is  a  controversy  between  States     .     .     .     23  vs.  one. 

' '  One  State  may  sue  another  and  might  under  the  confederation. 

"  Is  she  here,  to  be  own  judge. 

"  I  maintain 

"  i.  That  the  Constitution  of  U.  S.  is  not  a  league,  con 
federacy,  or  compact  between  the  States,  in  their  sovereign 
capacities;  but  a  Government,  proper;  founded  on  the  adop 
tion  of  the  People,  and  creating  direct  relations  between  itself 
and  individuals. 

"2.  That  no  State  authority  has  power,  to  dissolve  these 
Relations;  that  nothing  can  dissolve  them,  but  Revolution; 
and  that  consequently  there  can  be  no  such  thing  as  secession, 
without  Revolution. 

"  3.  That  there  is  a  Supreme  Law,  consisting  of  the  Con 
stitution  of  the  U.  S.  Acts  of  Congress  passed  in  pursuance  of 
it,  and  Treaties;  and  that  in  cases,  not  capable  of  assuming 
the  character  of  a  suit,  in  law  or  equity,  Congress  must  judge 
of,  and  interpret  this  paramount  law;  and  in  cases  capable  of 
assuming,  and  actually  assuming,  that  character,  the  Supreme 
Court  of  the  U.  S.  is  the  final  interpreter. 

"  4.  That  an  attempt  by  a  State  to  abrogate,  annul,  or  nullify 
an  Act  of  Congress,  or  to  arrest  its  operation  within  her  limits, 
on  the  ground  that  in  her  own  opinion  such  law  is  unconstitu 
tional,  is  a  direct  usurpation  upon  the  just  powers  of  the  Genl. 


102  Daniel  Webster 

Government,  a  plain  violation  of  the  Constitution,  and  a 
proceeding  essentially  Revolutionary,  in  its  character  and 
tendency 

"No  compact  between  States,  but  a  Govt.  creating  direct 
relations  with  individuals  . 

' '  S®~.  .  .  Must  be  argued,  mainly  on  face  of  Constitu 
tion  itself. 

"  .     .     .     We  must  not  turn  our  backs  to  the  light. 

"  All  agree,  that  it  speaks  with  authority  and  is,  some  how 
adopted. 

"  Great  question  is,  what  does  it  say  of  itself?  what  does  it 
purport? 

"It  is  to  be  remembered, that  it  speaks  only, after  its  adoption. 
'  Till  ratified  in  9  States,  it  was  but  a  proposal,  a  draft. 

"Convention  framed  the  Const.  .  .  .  laid  it  before 
Old  Congress  .  .  .  Congress  transmitted  it  to  the  Legis 
latures  of  the  States,  to  be  laid  before  Conventions  of  the 
People — St.  Legis.  called  these  Conventions  . 

"  As  yet,  it  was  but  a  proposal.  It  spake  no  language  .  .  . 
when  9  States  ratified,  it  then  spake,  authoritatively. 

' '  What  it  says  of  itself  is  as  conclusive,  as  what  it  says  on  any 
other  subject. 

"  What  does  it  say  of  itself? 

"I.  It  is  a  Constitution;  not  a  compact,  not  a  confederacy, 
not  a  league,  but  a  Constitution. 

[On  the  margin  is  written,  "  No  State  shall  enter  into  a 
compact."] 

' '  What  is  a  Constitution  ?  Do  we  need  information  on  this 
point  ?  Public  law.  Vattell.  Locke. 

' '  What  is  the  Constitution  of  one  of  our  own  States  ? 

"Constitution  of  U.  S.  speaks  of  itself,  in  same  sense.  6 
Art.  2  section. 

[On  margin  "  Vid  So.  Carolina  Ratification,  p.  409  and 
N.  C.  p.  452-"] 

"  And  it  speaks  for  itself  in  contradistinction  to  confedera 
tion.  Art.  6. 

Between  States  ratifying  Constitution  is  a  law.     It  is 


United  States  a  Union  103 

assumed  to  be  the  Supreme  Law.     What  is  a  law  ?     . 

not  a  compact    .     .     .     but  a  rule,  prescribed  by  a  Supreme 

power,  commanding  what  is  right,  etc. 

"  Mr.  Madison 

"  MS.  The  Constitution,  then,  is  the  prescribed  Supreme 
rule.  As  if  People  had  said,  '  We,  the  People  of  U.  S.  pre 
scribe  the  following  Supreme  law.' 

"  Is  a  law,  a  contract,  or  compact? 

"Again;  the  language,  it  is  ordained  .  .  .  established. 
This  not  the  language  of  compact. 

"  J®°  The  great  difference  is;  a  Constitution,  a  law,  acts  by 
its  own  power  of  execution.  A  compact  is  between  superior 
powers. 

"  II.  The  Constitution  speaks  of  the  political  system  which 
it  establishes,  as  '  the  Govt.  of  the  U.  S.' 

"What  is  a  Govt.  Is  a  league,  a  compact  between  Sov. 
States  a  Govt. 

"  Is  a  treaty,  however  close,  a  Gov.  ? 

"  A  Govt.  of  a  State  is  the  Supreme  power  of  that  State.  It 
is  that  precisely  which  constitutes  sovereignty  . 

'  Every  nation,  or  State,  that  governs  itself,  is  a  sovereign 
State.' 

"  Vattell  p.  60.  It  is  the  frame  of  political  power  which, 
prescribes  the  laws  etc. 

"  t&~  Difference  between  a  Govt.  .  .  .  and  a  treaty  or 
compact  .  .  .  Consolidation. 

"III.  What  are  its  sanctions?  Does  it  rest  in  plighted 
faith,  Does  it  operate  proprio  vigore.  Mr.  Bibb  says  the 
former.  But  not  so.  vid  Arts  of  Confederation. 

"  Constitution  operates,  by  its  own  means,  and  own  power. 
It  has  its  own  Legislature  .  .  .  Executive  .  .  .  and 
judicature.  It  enforces  its  own  decisions,  by  its  own  proper 
power.  This  is  not  compact,  but  Govt.  Vid  prohibitions  on 
Congress. 

"  .  .  .  No  answer,  to  say  the  Constitution  is  founded, 
on  restraints  or  powers  of  Govt.  in  the  consent  of  the  peo 
ple.  So  it  is;  but  when  so  founded,  it  becomes  law,  not  com 
pact.  It  is  contract,  executed.  Statutes  are  founded  on 


104  Daniel  Webster 

the  agreement  of  ye  Senate  and  House ;  but  when  passed,  they 
are  no  longer  agreements,  but  law. 

"  It  defines  treason.  It  tries  for  treason,  and  punishes  for 
treason,  by  its  own  authority. 

"  How  can  there  be  treason  agt.  a  compact,  a  league.  It  in 
corporates  the  States,  as  a  sovereign  power;  by  name  '  U.  S.' 
'  treason  agt.  U.  S.'  '  U.  S.'  '  Several  States.' 

"IV.  It  creates  a  direct  relation,  between  itself,  and  indi 
viduals.  This  has  been  denied,  but  is  true. 

"  Contracts. 

"  It  has  a  corporate  character,  i.  It  punishes  him  for 
treason,  and  all  other  crimes  in  the  code. 

"2.   It  taxes  him,  directly  and  indirectly,  and  in  all  forms. 

"3.  It  demands  of  him  military  service;  and  subjects  him 
to  the  rules  of  war. 

"Are  not  these  direct  relations?  Can  closer  relations, 
exist,  between  any  man,  and  his  Govt. 

"  It  protects  him,  also. 

"  i.  It  makes  war,  for  his  protection;  and  no  other  Govt 
can  do  it. 

"2.  It  makes  peace,  for  his  protection;  and  no  other  Govt. 
can  do  it. 

"3.  It  maintains  armies  and  navies,  for  his  protection ;  and 
no  other  Govt.  can  maintain  them. 

"4.   He  sails  under  its  flag,   and  can  sail  under  no  other 
In  every  thing,  that  connects  him  with  foreign  States 
it  is  his  only  Govt. 

"  He  can  be  known  abroad,   only  as  its  citizen     . 
Suppose  a  S.  Carolinian  to  go  abroad.     He  rejects  the  char 
acter  of  Am.  citz. 

"V.  If  this  be  nothing  but  a  compact  between  sovereign 
States,  or  parties,  where  are  the  rights  and  duties  of  these  par 
ties  pointed  out.  What  are  the  rights  of  parties.  What  have 
the  States  promised  to  do  ?  Nothing.  What  promised  not  to 
do?  Nothing.  They  do  not  promise  to  appoint  Electors,  and 
Senators;  they  are  directed  to  do  it.  ... 

' '  They  do  not  stipulate,  they  will  not  make  war,  nor  coin 
money:  .  .  .  they  are  prohibited  from  doing  it. 


United  States  a  Union  105 

"  They  are  spoken  to  by  a  Superior  power,  the  People. 
There  is  no  one  portion  of  compact,  a  contract  by  the  States, 
in  the  whole  instrument, 

' '  Constitution  does  not  rely  on  the  compact,  for  the  fulfil 
ment  of  her  duty  by  the  State.  It  requires  no  State  pledge. 
It  requires  INDIVIDUAL  OATHS. 

"  VI.  Still  reverting  to  the  terms  of  the  Constitution,  we 
find  that  its  great  apparent  purpose  is,  to  unite  the  people  of 
all  the  States,  under  one  Govt.  for  certain  purposes  and  to  the 
extent  of  this  union,  to  abrogate  the  separate  authority  of  the 
State  Govts. 

"  i.   In  foreign  relations. 

"  Congress  only  can  declare  war.  Ergo,  when  citizens  of 
one  State  at  war,  all  must  be.  In  this  respect,  one  people. 

"  2.  Prest.  and  Senate  only  can  make  Peace.  ...  A 
State  cannot  continue  in  war.  In  this  respect,  one  people. 

"3.  Common  coin  ?  Citizens  of  each  State  to  have  privileges 
of  citizens  in  all  others. 

"4.   In  all  that  relates  to  common  defence,  one.     Ergo,  in 

the  common    defence     ...      in    Peace     ...      in   war 

.     in  common — in  coin  and  standard,  and  in  mutuality 

of  rights  of  citizenship,  THE  PEOPLE  OF  ALL  THE  STATES  ARE 

ONE  PEOPLE. 

"  Proclamation  rights,  ergo,  in  them.  Mr.  Monroe  .  .  . 
Nobody  disputed  Mr.  Monroe.  Even  Va.  did  not  com 
plain. 

"  VII.  The  very  object  of  the  Constitution  was,  to  get  rid 
of  a  league,  and  make  a  Govt.  This  very  matter  of  revenue 
and  imposts  formed  the  difficulty.  The  States  cd.  not  comply 
with  the  requirements  of  Congress.  All  was  capricious,  from 
beginning  of  Confd. 

"  Mr.  Monroe's  Rep't.  July  1785,  read.  p.  50,  52. 

' '  First  Resolution  of  Convention  p.  134,  19  June  1787. 

"  Here  is  a  Govt.  a  national  Govt.  with  power  to  execute 
itself.  This  Reso.  always  the  basis  of  all  subsequent  proceed 
ings,  always  at  the  head  vid.  p.  207.  Vid:  Journal.  Mr. 
Patterson's  proposition  to  mend  the  league  rejected.  Con 
federacy  is  a  league,  and  so  called.  Here,  Resolved  to  have 


io6  Daniel  Webster 

a  Govt.  .  .  .  The  very  object  was,  to  get  rid  of  the  power 
of  State  Votes. 

"  Under  Confederacy,  Congress  advised  the  States;  they 
might  act  or  not. 

' '  If  they  refused,  no  remedy  but  war. 

"  However  inexpedient,  this  remedy  did  exist  and  did  alone 
exist.  MR.  JEFFERSON. 

"  The  Constitution  has  reversed  this  whole  state  of  things. 
We  cannot  now,  make  war  on  the  States.  We  cannot  blockade 
Chstn  [Charleston]  We  can  only  execute  the  laws. 

"  Constitution  has  given  power  to  make  laws,  binding  on 
individuals.  To  execute  these  laws,  to  make  it  criminal  to 
oppose  them  .  .  .  and  to  punish  opposers  .  .  .  The 
plain  object  was,  to  avoid  collision  with  States. 

"  Mr.  Ellsworth.     .     .     .     and  Johnson. 

1 '  Look  to  all  contemporary  history  .  .  .  the  Federalist 
.  Debates  in  the  States  etc. 

"On  one  side,  object  was,  to  prove  necessity  of  turning 
league  into  a  Govt. 

"  On  the  other,  this  necessity  denied. 

4 '  All  agreed,  that  this  precise  thing  was  done. 

11  In  all  Debates,  in  all  propositions  to  amend;  not  one 
suggestion,  anywhere,  that  this  was  a  compact  between 
States. 

"  Elliotts  Deb.  286,  7,  8.     Judge  Wilson. 

"  Fed.  No.  22  p.  139.  read.     Mr.  Madison  on  population. 

"  Why  is  secession  Revolutionary     . 

"VIII.  History  and  form  of  ratification,  shows  it  to  be  a 
Govt.  and  not  a  league. 

"States  do  not  plight  faith,  as  under  Confederacy.  But 
people  of  the  States  adopt,  consent  to,  ratify.  Not  one  single 
case,  in  which  the  State  accedes  to  the  compact. 

"  Accede  wd.  be  a  proper  word,  if  it  were  a  league  .  .  . 
was  proper,  in  case  of  Canada  .  .  .  and  perhaps  of  N.  O. 
The  States  have  done  nothing,  of  which  secession  is  the 
converse. 

' '  They  never  acceded  to  the  union ;  and  can  never  secede 
from  it. 


United  States  a  Union  107 

"  The  People  must  reject,  what  they  have  adopted;  they  must 
break  up,  what  they  have  ratified. 

"a®" His.  of  10  Art.  of  Amendment,  i  vol.  S.  Journal. 
Report  64-73. 

"IX.  Finally  the  People,  of  each  and  all  the  States, 
adopted  the  Constitution,  as  an  act  binding  upon  all. 

"  .  .  .  Not  that  States  lines  were  broken  down,  and  the 
whole  people  in  mass. 

"  Not  that  Va.  could  outvote  Maryland,  and  leg'  her 
in.  ... 

"  Question  put  was,  'will  you  form  a  new  Govt.  over  all  the 
people  .  .  .  with  certain  powers  ...  as  far  as  this 
new  Govt.  extends,  will  you  all  become  one  people.' 

'  Instead  of  the  States  creating  this  Govt.  will  you  create 
it  yourselves,  on  yr.  own  authority? 

'  If  you  say  yes,  here  is  the  Instrument.     Agree  to  this, 
and  it  is  done.     .     .     .' 

"  It  was  ratified  by  the  people.  St.  Govts.  would  not  agree 
to  it,  beyond  their  power  .  .  .  tho  they  agreed  to  old 
Confederacy. 

"  '  Shall  the  Instrument  itself  contain  a  declaration  that  it  is 
ordained,  not  by  States,  but  by  the  People?  it  shall.' 

"  Here,  then  is  the  declaration. 

"  Contemporary  history  shows  this  to  have  been  the  under 
standing.  Fed.  22.  Mr.  Madison  104. 

"All  agreed,  it  was  founded,  if  at  all,  in  a  grant  by  the 
people. 

"Some  approved  this;  and  some  disapproved  it.  Mr. 
Henry.  Va.  RATIFICATION.  Giles-Tyler. 

"  Lastly,  these  very  words,  '  We  the  people.' 
'  This,  then,  is  not  a  league,  compact,  or  confederacy,  be 
tween  States,  in  their  separate  and  sovereign  capacities    .    .    . 

"  It  is  a  Constitution.  It  is  a  Govt.,  proper:  with  Legisla 
tive,  Executive,  and  Judicial  powers,  of  its  own.  It  is  founded 
on  the  adoption  and  ratification  of  the  People.  It  creates 
direct  relations,  of  protection  on  one  side,  and  obedience  on 
the  other,  between  itself,  and  individuals. 


io8  Daniel  Webster 

n. 

"No  State  can  dissolve  these  relations;  nor  anything  but 
Revolution.  Can  be  no  secession  without  Revolution. 

"  This  follows,  of  course,  if  there  be  an  individual  tie. 

"  The  people  live  under  two  Govts.  .  .  .  owe  allegiance 
and  obedience  to  each  .  .  .  One  cannot  break  up  the 
other.  Both  are  popular  and  elective.  The  people  rely  on 
themselves,  to  keep  each  in  its  sphere.  Both  created  by  the 
people  .  .  .  both  constantly  maintained  by  the  People — 
both  responsible  to  the  People. 

"  The  People  cannot  break  up  this  Govt.,  but  by  Revolution. 

"  Constitution  is  without  limitation  of  time. 

"  .  .  .  Intended  to  be  perpetual  .  .  .  Even  Con 
federacy  called  perpetual  .  .  .  this  stronger,  or  meant  to 
be;  its  objects  were  of  a  permanent  nature.  Adopted  for  the 
People,  and  their  posterity.  It  lasts  thro  all  time. 

"  .  .  .  There  are  provisions  for  its  amendment;  none  for 
its  abandonment. 

"  .  .  .  Provision  for  letting  new  States  in;  none  for 
letting  old  States  out. 

"  It  was  intended  that  under  this  Constitution,  Govt.  should 
enter  into  permanent  arrangements  with  Foreign  States;  and 
for  our  commerce.  If  Congress  makes  war;  may  one  State 
secede,  and  make  peace. 

"  If  Prest.  makes  peace,  may  one  State  continue  the 
war. 

"  Secession,  as  a  Revolutionary  Right,  is  intelligible. 

"  As  a  right  under  the  Constitution,  it  is  a  plain  absurdity. 

"  Even  if  Cons,  a  compact  between  States,  there  could  be 
no  legal  or  moral  right  to  secede. 

"  It  wd.  only  be  a  right,  because  there  wd.  be  no  power  but 
that  of  war,  to  restrain  it. 

"  We  hear  much  of  the  Reserved  Rights  of  the  States.  What 
are  they  ?  Proclamation  is  right;  to  know  what  is  reserved, 
we  must  see  what  is  given. 

"  Powers  are  given;  and  no  right  reserved  to  withdraw,  but 
by  amendment.  Govt.  power  to  retract  what  ?  Negation.  .  .  . 


United  States  a  Union  109 

"Allegiance  is  given;  and  no  right  reserved  to  withdraw 
it. 

"  The  right  of  secession,  is  a  right  to  break  up  the  Govt.  It 
wd.  destroy  all  its  great  objects. 

"  How  could  we  carry  on  war  .  .  .  how  make  treaties  ? 
Who  wd.  treat  with  us  ?  Who  credit  us  ? 

"All  the  pretence  for  secession  is,  that  States,  by  reserved 
power  may  judge  of  infraction  of  Consn. 

"  She  has  reserved  no  such  power.  No  proof,  or  intimation 
of  any  such  reservation. 

"  Not  the  slightest  evidence,  that  any  such  intention  was 
entertained  by  people;  but  e  contra. 

III. 

"  There  is  a  Supreme  law,  consisting  of  Constitution,  Acts 
of  Congress,  and  Treaties;  and  in  cases,  not  assuming  Judicial 
form  etc.,  Congress  is  the  judge;  where  Judicial  form  is  as 
sumed,  Judiciary  is  Judge. 

"I.  It  was  intended  to  make  Congress,  and  the  Nat.  Ju 
diciary  final  arbiters 

"  Resolution  .  .  .  Supreme  Legislature  etc.  p.  134. 
13  Reso.  p.  137.  .  .  . 

"  i.  It  was  universally  understood  they  had  done  that. 
Both  friends  and  foes  sd.  that. 

"  Fed.  3  No.  p.  20  as  to  treaties  and  laws  of  nations,  read 
No.  39.  p.  241;  read.  No.  80.  p.  495.;  read,  as  marked. 

"  2.  Elliot's  Deb.  390.  Mr.  Madison  3  Do.  44.5  Yates 
minutes.  Grimke  86.7  .  .  .  Mr.  Martin  .  .  .  Mr. 
Pinkney  friends  and  foes,  then,  told  the  People,  that  this 
power  was  in  the  Constitution. 

WHAT  WAS  THE  JUD.  POWER  CREATED  FOR  ? 
Vid. :  Negative  of  State  Laws  etc. 

"3.  It  is  in  the  Constitution,  of  necessity  it  is  in  every 
Govt. 

"  French  Treaty.     It  is  in  every  State  Constitution.     It  is 
an  attribute  of  Govt.     It  is  a  part  of  the  old  question     . 
if  a  league,  St.  continues.     If  a  Govt.  Govt.  continues. 


no  Daniel  Webster 

"  There  can  be  no  govt.  wt.  it.  whoever  acts,  must  judge 
of  their  authority. 

"  Govt.  will  act  only  on  one  side  of  the  question. 

"  This  is  the  alternative;  either  this  Govt.  must  decide  on 
its  own  power,  or  those  powers  must  be  judged  of  by  24 
States  . 

"Which  is  fittest?  That  the  agents  of  all,  should  decide 
for  all,  or  that  one  shd.  decide  for  all  ? 

"Every  agt.  that  refers  acts  of  Congress  to  State  judgt, 
appeals  from  the  majority  to  the  minority  .  .  .  Appeals  from 
a  common  int.  to  a  particular  int. 

"  The  right  is  sd.  to  be  limited  to  cases  of  deliberate  pal 
pable  and  dangerous  violation  .  .  .  And  this  is  thought  to 
make  it  safe.  But  who  judges  of  all  this  ?  What  proof  is 
reqd.  of  such  violation  ?  ...  It  is  all  opinion,  and  the 
opinion  of  one  State,  by  a  small  majority. 

"  The  agt.  always  takes  for  granted,  that  in  a  disputed  case, 
the  State  must  be  right,  and  Congress  wrong. 

"  But  suppose  the  State  wrong,  what  then?  Must  23  yield 
to  one  ? 

"  Questions,  not  assuming  a  Jud.  shape,  must  be  decided, 
and  ought  to  be,  by  Congress:  on  the  common  principle,  that 

A  MAJORITY  MUST  GOVERN. 

"  .  .  .  Like  cases  cited  by  Mr.  Bill;  and  apportionment 
Bill. 

"  '  Majority  Govt.' 

"Cases  assuming  Jud.  shape  must  be,  and  ought  to  be, 
judged  by  Sup.  court.  Ellsworth 

"  No  better  mode  of  establishing  a  final  interpretation  (?) 
.  .  .  nominated  by  the  Prest.  .  .  .  approved  by  the 
Senate. 

"The  very  first  Congress  passed  laws,  providing  for  the 
exercise  of  this  jurisdiction. 

"The  provisions  of  the  Con.  are  plain  .  .  .  Con.  and 
laws,  and  treaties  are  supreme  .  .  . 

"  .     .     .     President  shall  execute  them 

"And  Jud.  power  shall  extend  to  every  case  occurring  under 
them. 


United  States  a  Union  in 

:'The  whole  argt.  assumes,  always,  that  Congress  acts  wt. 
responsibility  ...  It  will  not  admit  that  we  are  Reps 
It  thinks  only  of  State  power. 

"  Members  of  Congress  are  amenable  to  their  constituents. 
The  remedy  for  any  evil,  lies  in  election,  and  in  amend 
ment  . 

"If  the  proved  intention  of  the  Convention  proves  any 
thing  . 

"  Or  the  contemporary  admission,  of  friends  and  foes   .    .    . 

"  Or  a  course  of  Jud.  decisions,  acquiesced  in  by  all  the 
States,  for  40  years. 

"Or  the  present  opinion  of  a  great  majority  of  the  whole 
Country  . 

"  Or  the  plain  words  of  the  Constitution  itself. 

' '  THEN  THERE  is  A  SUPREME  LA  w  AND  A  FINAL  INTERPRETA 
TION. 

IV.   Nullification. 

"An  attempt  by  a  State  to  abrogate,  annul,  or  nullify  an 
act  of  Congress  etc.,  or  arrest  it  etc.  .  .  .  is  a  usurpation 
on  the  genl.  Govt. — violates  the  Constitution  and  is  Revolu 
tionary  . 

"  If  the  Govt.  were  a  compact,  the  tendency  of  this  proceed 
ing  would  be  to  break  it  up;  because,  if  one  St.  not  bound, 
others  not  bound. 

"  If  one  State  resists  one  law,  others  may  resist  others. 

"  But  it  is  a  direct  attack  on  the  authority  of  Govt.  It  is 
overturning  the  Govt. 

'To  resist  the  execution  of  the  laws,  by  force  is  treason. 
'  Can  a  State  commit  treason  ' — no  .  .  .  nor  authorize 
others. 

"  Treason  may  be  committed  agt.  So.  Carolina  ?  cd.  U.  S. 
justify  it. 

"  Nullification  is  the  same  in  principle,  but  less  respectable, 
in  its  general  character  than  entire  Secession.  It  seeks  to  keep 
in  the  Govt.  while  it  destroys  it.  ... 

"...   It  enjoys  its  benefits,  while  it  rejects  its  burdens  .  .  . 


ii2  Daniel  Webster 

"  .  .  .  It  partakes  of  the  common  counsels,  but  will  not 
submit  to  their  results. 

"  .  .  .  It  acts  as  a  suspension,  over  laws  of  Congress  and 
accepts  and  rejects  what  it  pleases  . 

"  So.  Carolina  herself  hardly  pretends  it  is  a  Constitutional 
right,  vid.  address  to  People  of  S.  Ca.  p.  46. 

' '  These  very  Resolutions  show  it  no  constitutional  right. 

' '  Why  is  secession  Revolutionary  ? 

1 '  Because  there  is  a  Govt. 

"  But  to  overturn  Govt.  by  Nullification  is  Equally  Revo. 

NIAGARA. 

"  What  justification  for  this  Revolution,  who  does  it  ?  half  a 
dozen  Gent.  On  what  ground  ? 

"  That  protection  laws  are  unconstitutional,  plain,  deliber 
ate  .  .  .  palpable,  dangerous. 

' '  Who  entertains  this  opinion. 

"  fiST"  Paper  marked  '  What  cause.' 

"If  friends  of  Nullification  could  succeed,  would  prove 
themselves  '  Architects  of  Ruin, '  and  blasters  of  human 
hope. 

"  They  stand  up  to  undeceive  the  world  ...  to  pro 
nounce  the  weakness  of  our  system. 

"  They  declare,  that  seeds  of  dissolution  are  in  the  Govt. 
— and  that  it  is  wonderful  it  has  lasted  so  long. 

"They  deceive  themselves.  The  evil  tendency  of  this 
doctrine  is  understood.  They  cannot  but  see  how  the  cur 
rent  of  opinion  sets  .  .  .  Who  is  for  Nullification,  one 
out  of  24  .  .  .  and  that  only  by  a  small  majority. 

"  No  man  cheers  it.     no  one  cries  God  save  it. 

"  It  is  a  subject,  either  of  deep  dislike,  or  habitual  ridicule, 
with  Q-ioths  of  the  People. 

"  This  tone  of  public  opinion,  and  the  stand  taken  by  the 
Executive  Govt.  have  annihilated  it  ... 

"  People  will  perceive  this  intention  It  is  not  liberty,  but 
American  Liberty.  Liberty  bringing  with  it  recollections.  .  .  . 
"  Rescue." 


United  States  a  Union  113 

It  is  interesting  to  compare  the  actual  peroration 
with  the  notes  at  the  end  of  this  brief.  As  a 
prophecy  of  the  uprising  of  a  great  people  in  1861 
it  is  one  of  the  most  notable  in  history. 

Mr.  Webster  concluded  his  speech  as  follows  : 

"  But,  Sir,  if  the  government  do  its  duty,  if  it  act  with  firm 
ness  and  with  moderation,  these  opinions  cannot  prevail.  Be 
assured,  Sir,  be  assured,  that,  among  the  political  sentiments 
of  this  people,  the  love  of  union  is  still  uppermost.  They  will 
stand  fast  by  the  Constitution,  and  by  those  who  defend  it.  I 
rely  on  no  temporary  expedients,  on  no  political  combination; 
but  I  rely  on  the  true  American  feeling,  the  genuine  patriotism 
of  the  people,  and  the  imperative  decision  of  the  public  voice. 
Disorder  and  confusion,  indeed,  may  arise;  scenes  of  commo 
tion  and  contest  are  threatened,  and  perhaps  may  come. 
With  my  whole  heart,  I  pray  for  the  continuance  of  the  do 
mestic  peace  and  quiet  of  the  country.  I  desire,  most 
ardently,  the  restoration  of  affection  and  harmony  to  all  its 
parts.  I  desire  that  every  citizen  of  the  whole  country  may 
look  to  this  government  with  no  other  sentiments  than  those 
of  grateful  respect  and  attachment.  But  I  cannot  yield  even 
to  kind  feelings  the  cause  of  the  Constitution,  the  true  glory 
of  the  country,  and  the  great  trust  which  we  hold  in  our  hands 
for  succeeding  ages.  If  the  Constitution  cannot  be  maintained 
without  meeting  these  scenes  of  commotion  and  contest,  how 
ever  unwelcome,  they  must  come.  We  cannot,  we  must  not, 
we  dare  not,  omit  to  do  that  which,  in  our  judgment,  the 
safety  of  the  Union  requires.  Not  regardless  of  conse 
quences,  we  must  yet  meet  consequences;  seeing  the  hazards 
which  surround  the  discharge  of  public  duty,  it  must  yet  be 
discharged.  For  myself,  Sir,  I  shun  no  responsibility  justly 
devolving  on  me,  here  or  elsewhere,  in  attempting  to  maintain 
the  cause.  I  am  bound  to  it  by  indissoluble  ties  of  affection 
and  duty,  and  I  shall  cheerfully  partake  in  its  fortunes  and  its 
fate.  I  am  ready  to  perform  my  own  appropriate  part,  when 
ever  and  wherever  the  occasion  may  call  on  me,  and  to  take 

8 


ii4  Daniel  Webster 

my  chance  among  those  upon  whom  blows  may  fall  first  and 
fall  thickest.  I  shall  exert  every  faculty  I  possess  in  aiding 
to  prevent  the  Constitution  from  being  nullified,  destroyed,  or 
impaired ;  and  even  should  I  see  it  fall,  I  will  still,  with  a  voice 
feeble,  perhaps,  but  earnest  as  ever  issued  from  human  lips, 
and  with  fidelity  and  zeal  which  nothing  shall  extinguish  call 
on  the  PEOPLE  to  come  to  its  rescue."1 

The  Force  Bill  passed  the  Senate  on  the  2oth  of 
February,  1833.  It  is  not  to°  much  to  say  that 
the  success  of  that  measure  was  due  to  the  support 
of  Mr.  Webster. 

The  debate  on  this  measure,  its  adoption,  and 
the  well-known  character  of  the  President,  con 
vinced  the  nullifiers  that  they  would  have  to  reckon 
with  the  whole  power  of  the  general  government 
if  they  should  persist  in  their  refusal  to  obey  the 
laws  for  the  collection  of  duties  on  imports.  Mr. 
Clay's  compromise  tariff  law,  which  was  passed 
just  before  the  end  of  the  session,  no  doubt  made 
it  easier  for  them  to  yield,  and  they  yielded.  Mr. 
Clayton,  of  Delaware,  insisted  that  it  should  not 
pass  unless  Mr.  Calhoun  himself  and  all  his  asso 
ciates  voted  for  it,  and  vote  for  it  they  did.2 

Andrew  Jackson's  opinion  of  the  situation  cre 
ated  by  the  passage  of  the  two  bills  is  contained  in 
the  following  letter  to  his  wife's  nephew : 

"  PRIVATE. 

"WASHINGTON,  May  ist,  1833. 
"My  DR.  SIR, 

"  I  have  just  received  your  letter  of  the  6th  ultimo,  and 
have  only  time,  in  reply,  to  say  that  Genl.  Coffee  well  under- 

1  Webster's  Writings  and  Speeches,  vol.  vi.,  p.  237. 

s  A  very  interesting  account  of  the  framing  of  this  compromise  is  con 
tained  in  Benton's  Thirty  Years'  View,  vol.  i.,  pp.  313,  334. 


United  States  a  Union  115 

stood  Mr.  Shackleford,  and  urged  your  nomination  in  his 
stead.  I  had  nominated  you,  but  on  the  serious  importunity 
of  Col.  King,  your  Senator,  with  Genl.  Coffee,  the  change  was 
adopted,  and  you  nominated  for  the  office  you  now  fill.  Be 
fore  the  receipt  of  yours  Genl.  Coffee  had  written  me  and  re 
quested  that  I  would  appoint  you  to  the  office  vacated  by  Mr. 
Shackleford — if  we  had  a  Senate  on  whose  principles  we  could 
rely,  this  would  have  been  done,  but  I  did  not  believe  it  would 
be  prudent  to  bring  your  name  before  the  Senate  again,  and 
am  happy  you  are  content  where  you  are. 

"  The  Senate  can  not  remove  you,  and  I  am  sure  your  faith 
fulness  and  honesty  will  never  permit  you  to  do  an  act  that 
will  give  good  cause  for  your  removal,  and  if  Moor  and  Poin- 
dexter  discovered  that  you  were  related  to  me,  that  would  be 
sufficient  cause  for  them  to  reject  you,  therefore  it  is  that  I  let 
well  enough  alone,  altho'  I  know  it  would  be  a  convenience  to 
you  to  be  located  where  you  are.  Still  a  rejection  by  the 
Senate  might  prove  a  greater  inconvenience,  and  for  the 
reasons  assigned  it  was  not  done. 

"  I  have  had  a  laborious  task  here,  but  nullification  is  dead, 
and  its  actors  and  abettors  will  only  be  remembered  by  the 
people  to  be  execrated  for  their  wicked  designs  to  sever  and 
destroy  the  only  good  government  on  the  globe,  and  that 
prosperity  and  happiness  we  enjoy  over  every  other  portion  of 
the  world.  Hainan's  gallows  ought  to  be  the  fate  of  all  such 
ambitious  men  who  would  involve  their  country  in  civil  war 
and  all  the  evils  in  its  train,  that  they  might  reign,  and  ride  on 
the  whirlwind  and  direct  the  storm.  The  free  people  of  these 
United  States  have  spoken,  and  consigned  these  wicked  dema 
gogues  to  their  proper  doom.  Take  care  of  your  nullifiers, 
you  have  them  amongst  you — let  them  meet  with  the  indignant 
frowns  of  every  man  who  loves  his  country. 

"  The  Tariff,  it  is  now  well  known  was  a  mere  pretext — its 
burthen  was  on  your  coarse  woollens — by  the  law  of  July,  1832 
— coarse  woollens  was  reduced  to  five  per  cent,  for  the  benefit 
of  the  South.  Mr.  Clay's  bill  takes  it  up  and  drops  it  with 
woollens  at  50  per  cent. — reduces  it  gradually  down  to  20  per 
cent.,  and  there  it  is  to  remain,  and  Mr.  Calhoun  and  all  the 


n6  Daniel  Webster 

nullifiers  agree  to  the  principle.  The  cash  duties  and  home 
valuation  will  be  equal  to  15  per  cent,  more,  and  after  the  year 
1842  you  pay  on  coarse  woollens  35  per  cent. — if  this  is  not 
protection  I  cannot  understand,  and  therefore  the  tariff  was 
only  the  pretext,  and  disunion  and  a  Southern  Confederacy 
the  real  object — the  next  pretext  will  be  the  negro  or  slavery 
question.  My  health  is  not  good  but  is  improving  a  little. 
Present  me  kindly  to  your  lady  and  family,  and  believe  me  to 
be  your  friend.  I  will  always  be  happy  to  hear  from  you. 

"  ANDREW  JACKSON. 
"  The  Revd.  ANDREW  J.  CRAWFORD."  ' 

Nothing  is  more  honorable  in  Mr.  Webster's 
career  than  the  courage  and  determination  with 
which  he  went  to  the  support  of  the  President  of 
the  United  States  in  the  emergency  created  by  the 
Nullification  Ordinance.  Webster  had  been  one 
of  the  most  formidable  opponents  of  Jackson's 
arbitrary  policy.  He  had  especially  condemned  in 
the  most  vigorous  and  effective  language  the  presi 
dential  veto  of  the  bill  to  continue  the  charter  of 
the  Bank  of  the  United  States.  The  President's 
course  in  reference  to  this  bank  led  to  great  finan 
cial  suffering  throughout  the  whole  Union.  His  re- 

1  This  letter  is  published  at  length,  because  of  its  intrinsic  interest.  It 
was  made  public  by  Charles  Sumner  in  December,  1860.  Its  publication 
caused  Mr.  Crawford,  who  still  resided  in  the  South,  so  much  annoyance, 
that  he  destroyed  it.  Before  its  destruction  a  few  fac-similes  were  made. 
One  was  presented  by  Charles  Francis  Adams  to  the  Massachusetts  Histori 
cal  Society.  Another  is  in  the  author's  possession.  Pierce,  Life  of  Sumner, 
vol.  iv.,  pp.  18,  19.  Mass.  Hist.  Soc.  Proceedings,  vol.  xiv.  (Second  Series), 
P.  370. 

The  way  in  which  the  duty  on  coarse  woollens,  referred  to  in  the  letter, 
came  to  be  inserted  in  the  bill,  is  related  in  Benton's  Thirty  Years'  Vit-w, 
vol.  i.,  p.  319.  It  was  done  to  favor  two  or  three  manufacturers  in  Con 
necticut,  and  thereby  to  get  votes  from  that  State.  It  shows  that  tariff 
bills  were  arranged  in  1833  much  as  they  were  in  1897,  except  that  the 
rates  are  much  higher  now  than  they  were  in  1833. 


United  States  a  Union  1 1 7 

moval  of  the  government  deposits  from  that  bank 
was  an  act  of  arbitrary  power.  The  Whig  party 
opposed  these  measures,  both  in  Congress  and  out 
of  it.  vet  we  find  the  great  Whig  leader,  when  the 
nation's  life  was  in  peril,  hastening  with  all  his 
resources  to  the  support  of  a  political  opponent} 
It  is  a  melancholy  reflection  that  at  a  later  period 
of  the  history  of  the  United  States,  when  President 
Cleveland  was  confronted  with  the  emergency 
caused  by  the  constant  withdrawals  of  gold  from 
the  treasury,  to  an  extent  which  within  three  weeks 
would  have  depleted  the  treasury  of  gold  and  put 
the  country  upon  a  silver  basis,  he  was  obliged  to 
exert  the  powers  conferred  by  a  previous  statute 
without  any  support  from  his  political  opponents 
in  Congress.  Nothing  in  their  whole  course  was 
more  discreditable  to  them  than  this  absolute  re 
fusal  to  aid  the  President  in  his  struggle  to^main- 
tain  the  honor  and  good  faith  of  their  common 
country.1 

1 A  just  tribute  from  a  political  opponent  to  Mr.  Webster's  patriotism,  in 
this  emergency,  is  to  be  found  in  Benton's  Thirty  Years'  View,  vol.  i.,  p.  333. 


CHAPTER  XI 

POWER  OF  THE  UNITED    STATES   OVER   ACQUIRED  TER 
RITORY    WHEN    ADMITTED    AS    A    STATE 

NEW  ORLEANS  VS.   UNITED  STATES 

IN  1836,  Mr.  Webster  argued  successfully  one 
other  case  in  which  the  effect  of  cession  of  territory 
to  the  United  States  was  involved.  This  was  the 
case  of  New  Orleans  vs.  The  United  States.1  When 
Napoleon  ceded  Louisiana  to  the  United  States  it 
was  declared  in  the  treaty  (Article  Second)  that 
"  in  the  cession  are  included  the  adjacent  islands 
belonging  to  Louisiana,  and  all  public  lots  and 
squares,  vacant  lands  and  all  public  buildings."  In 
the  city  of  New  Orleans  there  was  a  strip  of  vacant 
land  between  the  buildings  of  the  city  and  the  river. 
This  was  used  as  a  quay.  It  was  protected  from 
the  waters  of  the  Mississippi  by  a  levee.  This 
strip  became  very  much  enlarged  by  alluvial  de 
posits.  Mr.  Webster,  in  his  argument,  states  the 
facts  clearly2: 

'  The  sinking  of  a  frame  of  lumber,  at  the  expense  of  the 
inhabitants  of  New  Orleans,  at  a  particular  place  in  the  river, 
opposite  to  the  city,  for  the  protection  of  the  ground,  has  con 
tributed  to  the  rapid  and  extensive  enlargement  of  the  open 

1  Reported  10  Peters,  662  (1836). 
*  10  Peters,  672. 

liS 


Power  over  Acquired  Territory        119 

space  in  front  of  the  City.  This  enlargement  has  placed  the 
levee,  used  for  the  purposes  of  trade  farther  in  advance  of  the 
City,  and  has  left  the  ground  now  in  controversy,  in  such  a 
situation  as  not  to  be  required  for  the  uses  of  commerce.  The 
corporation  of  New  Orleans  therefore  proposes  to  sell  and  dis 
pose  of  it,  to  be  occupied  and  improved  by  those  who  may  de 
sire  to  purchase  it." 

The  United  States  claimed  the  title  to  this  strip 
of  land  under  the  treaty  before  mentioned.  It  was 
clearly  shown  that  the  Spanish  government,  and 
afterwards  the  French  government,  had  exercised 
authority  over  this  quay.  To  quote  again  from 
Mr.  Webster's  argument  (p.  673)  : 

"  The  plans  referred  to  show  that  there  was  always  an  open 
space  fronting  on  the  river,  and  the  uses  of  it  were  only  such 
as  were  consistent  with  the  public  use.  A  custom  house;  a 
parade  ground  for  the  military ;  barracks  for  the  soldiers,  were 
erected  upon  it.  These  were  permitted;  but  they  did  not 
destroy  the  title  of  the  citizens  to  it,  nor  did  such  uses  convert 
it  into  public  domain." 

With  this  statement  of  facts  it  is  easy  to  appre 
ciate  the  force  of  Mr.  Webster's  argument  (p.  674) 
upon  the  law  : 

'  The  sovereignty  of  Spain  over  this  property  existed  before 
the  cession,  for  the  sole  purpose  of  enforcing  the  uses  to  which 
it  was  appropriated.  This  right  and  the  obligations  imposed 
upon  it  became  vested  in  the  State  of  Louisiana  and  did  not 
continue  in  the  United  States  after  the  State  was  formed. 
Acquiesced  in  by  the  United  States  under  the  treaty  in  the 
first  instance,  it  necessarily  afterwards  passed  to  the  State. 
The  United  States  cannot  now  enforce  this  use  and  could  not 
take  the  quay  and  dispose  of  it;  and  unless  this  can  be  done 
there  is  nothing  to  support  this  action.  The  preservation  and 


120  Daniel  Webster 

the  enforcement  of  the  use  must  be  by  the  state  government. 
By  the  act  of  Congress  incorporating  the  City  of  New  Orleans 
all  the  use  of  property  became  vested  in  the  city." 

The  Supreme  Court  held  that  the  federal  juris 
diction  could  not  be  enlarged  by  the  treaty-making 
power,  and  that  when  the  State  of  Louisiana  was 
admitted  into  the  Union  she  was  admitted  on  the 
same  footing  as  the  original  States.  Consequently 
whatever  general  jurisdiction  over  localities  had 
been  vested  in  Spain  or  France,  was  then  vested 
in  the  State  of  Louisiana  and  not  in  the  federal 
government. 


CHAPTER  XII 

EFFECT    OF   GRANT    OF    ONE    FRANCHISE  UPON    POWER 

TO  GRANT  RIVAL  FRANCHISE THE  CHARLES 

RIVER    BRIDGE    CASE 

IN  the  January  term  of  1837,  the  case  of  the 
Charles  River  bridge  was  decided.1  As  long  ago 
as  1826,  Webster  had  been  consulted  in  reference 
to  a  bill  pending  before  the  Legislature  of  Massa 
chusetts,  for  the  construction  of  a  new  bridge  over 
the  Charles  River.  At  that  time  he  declined  to 
give  an  opinion,  though  he  called  attention  to 
some  of  the  difficulties  in  the  case.2 

The  case  was  this.  Even  before  1640,  a  ferry 
had  been  maintained  between  Boston  and  Charles- 
town  over  the  Charles  River.  This  continued, 
until,  in  1785,  a  corporation  was  incorporated  by  the 
Commonwealth  of  Massachusetts  with  authority 
to  build  a  bridge  in  the  place  where  the  ferry  was 
then  run,  and  to  take  tolls.  It  was  accordingly 
built,  and  was  opened  for  passengers  on  the  1 7th  of 
June,  1786.  In  1792,  the  charter  was  extended  to 
seventy  years  from  the  opening  of  the  bridge,  and 
it  was  enacted  that  at  the  expiration  of  that  time 
the  bridge  was  to  belong  to  the  Commonwealth. 

1  Charles  River  Bridge  vs.  Warren  Bridge,  n  Peters,  420. 
'Webster's  Letters,  Van  Tyne,  p.  117. 


122  Daniel  Webster 

In  1828,  the  Legislature  of  Massachusetts  incor 
porated  a  new  company  for  the  purpose  of  build 
ing  a  bridge,  near  that  of  the  old  company,  to  be 
known  as  the  Warren  bridge. 

"  The  Warren  bridge,  by  the  terras  of  its  charter,  was  to  be 
surrendered  to  the  State  as  soon  as  the  expenses  of  the  pro 
prietors  in  building  and  supporting  it  should  be  reimbursed, 
but  this  period  was  not  in  any  event  to  exceed  six  years  from 
the  time  the  Company  commenced  receiving  toll.  .  .  .  " 

"  In  the  argument  here,"  said  Chief  Justice  Taney,  "  it  was 
admitted  that  since  the  filing  of  the  supplemental  bill  a  suffi 
cient  amount  of  toll  had  been  received  by  the  proprietors  of 
the  Warren  bridge  to  reimburse  all  their  expenses,  and  that 
the  bridge  is  now  the  property  of  the  State  and  has  been  made 
a  free  bridge,  and  that  the  value  of  the  franchise  granted  to 
the  proprietors  of  the  Charles  River  bridge  has  by  this  means 
been  entirely  destroyed."  ' 

Mr.  Webster's  argument  was  based  upon  two 
propositions.  First,  that  the  grant  to  the  proprie 
tors  of  the  Charles  River  bridge  was  a  contract  and 
that  it  could  not  be  impaired  by  subsequent  legis 
lation.  Second,  that  to  destroy  the  value  of  the 
franchise  was  to  take  the  franchise  itself,  and 
that  the  State  could  not  do  this  without  making 
compensation. 

The  Supreme  Court  did  not  deny  the  soundness 
of  the  first  proposition,  but  held  that  the  contract 
involved  in  that  grant  was  to  be  strictly  construed 
and  that  the  grantee  could  claim  nothing  that  was 
not  clearly  given  by  the  charter.  The  conclusion 
was  drawn  that  as  no  express  grant  was  made  of  an 
exclusive  privilege,  none  was  to  be  implied. 

'ii  Peters,  537,  538. 


Power  to  Grant  Rival  Franchises      123 

This  was  the  first  important  constitutional  argu 
ment  in  which  Mr.  Webster  was  unsuccessful.  The 
case  itself  was  both  important  and  difficult.  The 
Massachusetts  Supreme  Judicial  Court  was  equally 
divided  upon  the  questions  involved,  and  for  that 
reason  the  original  suit  brought  by  the  Charles 
River  Bridge  Company  to  enjoin  the  construction 
of  a  parallel  bridge  from  Boston  to  Charlestown 
was  dismissed.  In  the  Supreme  Court  of  the 
United  States  three  of  the  Justices  thought  the 
right  of  the  plaintiff  to  an  injunction  clear.  Four 
were  of  the  opinion  that  the  act  of  the  legislature 
of  Massachusetts,  authorizing  the  construction  of  a 
new  bridge,  did  not  impair  the  obligation  of  the 
contract  contained  in  the  charter  of  the  old  bridge 
company,  and  for  that  reason,  affirmed  the  judg 
ment  of  the  court  below. 


CHAPTER  XIII 

RIGHTS  OF  CORPORATIONS  IN  OTHER  STATES COMITY 

BETWEEN  STATES BANK  OF  AUGUSTA  V.  EARLE 

THERE  are  many  other  causes  which  will  be  for 
ever  associated  with  the  name  of  Webster  and  to 
which  he  gave  the  full  force  of  his  keen  logic,  the 
vivid  clearness  of  his  masterly  analysis,  the  pictur 
esque  beauty  of  his  felicitous  statement,  which  in 
itself  was  argument,  and  above  all,  the  power  of 
that  eloquence  which  he  has  himself  so  perfectly 
described, — "  The  clear  conception  outrunning  the 
deductions  of  logic,  the  high  purpose,  the  firm 
resolve,  the  dauntless  spirit."  But  the  scope  of 
this  volume  is  limited  mainly  to  his  arguments  on 
questions  of  constitutional  and  international  law. 
One  of  the  most  notable  is  The  Bank  of  Augusta 
against  Earle,  as  it  is  reported 1 ;  The  Bank  of  the 
United  States  against  Primrose,  as  his  argument 
is  entitled  in  his  public  speeches.2  The  cases  in 
volved  the  same  questions,  were  argued  in  succes 
sion  in  February,  1839,  and  decided  simultaneously. 

The  judgments  of  the  courts  below  were  re 
versed,  and  the  right  of  a  corporation  chartered 
under  the  laws  of  one  State  of  this  Union  to  do 
business  in  any  other  State  was  sustained.  Thus 

1  13  Peters,  519.  5  Webster's  Works,  vol.  v.,  p.  106. 

124 


Comity  between  States  125 

was  associated  enterprise  freed  from  unjust  dis 
crimination.  To  curb  the  unlawful  ambition  of  these 
associations  has  fallen  to  the  lot  of  a  later  genera 
tion.  In  Webster's  day  the  country  needed  strength. 
To-day  it  needs  restraint.  The  power  and  authority 
which  he  vindicated  are  adequate  to  this  restraint. 

It  is  to  be  observed  that  the  effect  of  this  de 
cision  is  not  to  deprive  the  several  States  of  the  right 
to  regulate  corporations  doing  business  within  their 
limits,  because  they  are  incorporated  under  the  laws 
of  another  State.  On  the  contrary,  State  legislation 
regulating  the  transaction  within  such  State  of  bank 
ing,  insurance  and  other  business,  by  corporations  of 
other  States,  is  very  common  and  is  constitutional.1 

Were  it  otherwise,  a  corporation  incorporated 
under  the  laws  of  New  Jersey  might  be  more  free 
from  restraint  in  New  York  than  one  of  its  own 
corporations.  This,  certainly,  was  not  the  inten 
tion  of  the  Constitution.  Indeed,  in  many  respects 
these  intangible  beings,  the  creation  of  law,  are 
subject  to  more  varied  regulation  by  the  State 
than  are  the  individuals  who  compose  them.  This 
is  but  just,  for  their  actual  powers  are  far  greater ; 
and  in  many  cases  their  charters  are  perpetual. 

The  decisions  of  the  courts  in  Alabama  had 
been  that  a  corporation  incorporated  under  the 
laws  of  one  State  had  no  right  to  do  business  in 
another.  Corporations  had  not  then  attained  the 
proportions  they  have  since  reached.  But,  never 
theless,  the  advantages  derivable  from  corporate 

1  Diamond  Glue  Company  vs.  United  States  Glue  Co.,  187  U.  S.  Rep., 
611  (1903). 


i26  Daniel  Webster 

franchises  were  appreciated  and  the  importance  of 
this  question  attracted  public  attention  and  gave 
to  the  review  in  the  Supreme  Court  the  name  of 
"  The  Great  Appeal  Case  from  Alabama." 

Mr.  Webster  argued,  in  the  first  place,  that  the 
right  of  a  citizen  of  one  State  to  sue  citizens  of 
another  State  in  the  federal  courts  was  secured 
by  the  Constitution ;  that  the  Supreme  Court  had 
held  that  under  this  provision  a  corporation  incor 
porated  under  the  law  of  one  State  might  sue  in 
another ;  that  to  bring  a  suit  was  certainly  a  cor 
porate  act,  and  that  the  right  to  do  business  in  one 
State,  of  the  citizens  of  another  who  had  become 
stockholders  in  a  corporation  incorporated  under 
the  laws  of  the  latter,  was  not  divested  because 
of  the  corporate  form  under  which  they  acted. 

Secondly,  he  argued  that  independently  of  spe 
cific  constitutional  guaranties  the  courts  must  hold 
that  at  least  the  same  comity  existed  between  the 
several  States  of  the  Union  as  that  between  them 
and  foreign  nations ;  and  that  by  this  comity  a 
corporation  incorporated  in  one  State  could  make 
a  contract  in  another. 

To  quote  briefly  from  this  argument  :l 

"  The  law  of  comity  is  a  part  of  the  law  of  nations;  and  it 
authorizes  a  corporation  of  any  State  to  make  contracts  beyond 
the  limits  of  that  State. 

"  How  does  a  State  contract  ?  How  many  of  the  States  of 
this  Union  have  made  contracts  for  loans  in  England!  A  State 
is  sovereign,  in  a  certain  sense.  But  when  a  State  sues,  it  sues 
as  a  corporation.  When  it  enters  into  contracts  with  the  citi 
zens  of  foreign  nations,  it  does  so  in  its  corporate  character. 

1  Webster's  Works,  vol.  vi. ,  pp.  120,  122. 


Comity  between  States  127 

I  now  say,  that  it  is  the  adjudged  and  admitted  law  of  the 
world,  that  corporations  have  the  same  right  to  contract  and 
to  sue  in  foreign  countries  that  individuals  have.  By  the  law 
of  nations,  individuals  of  other  countries  are  allowed  in  this 
country  to  contract  and  sue;  and  we  make  no  distinction,  in 
the  case  of  individuals,  between  the  right  to  sue  and  the  right 
to  contract.  Nor  can  any  such  distinction  be  sustained  in  law 
in  the  case  of  corporations.  Where,  in  history,  in  the  books, 
is  any  law  or  dictum  to  be  found,  (except  the  disputed  case 
from  Virginia,)  in  which  a  distinction  is  drawn  between  the 
rights  of  individuals  and  of  corporations  to  contract  and  sue 
in  foreign  countries  in  regard  to  things  generally  free  and  open 
to  everybody  ?  In  the  whole  civilized  world,  at  home  and 
abroad,  in  England,  Holland,  and  other  countries  of  Europe, 
the  equal  rights  of  corporations  and  individuals,  in  this  respect, 
have  been  undisputed  until  now,  and  in  this  case;  and  if  a  dis 
tinction  is  to  be  set  up  between  them  at  this  day,  it  lies  with 
the  counsel  on  the  other  side  to  produce  some  semblance  of 
authority  or  show  of  reason  for  it. 

"  The  term  '  sovereignty  '  does  not  occur  in  the  Constitution 
at  all.  The  Constitution  treats  States  as  States,  and  the 
United  States  as  the  United  States;  and,  by  a  careful  enu 
meration,  declares  all  the  powers  that  are  granted  to  the 
United  States,  and  all  the  rest  are  reserved  to  the  States.  If 
we  pursue  to  the  extreme  point  the  powers  granted  and  the 
powers  reserved,  the  powers  of  the  general  and  State  govern 
ments  will  be  found,  it  is  to  be  feared,  impinging  and  in  con 
flict.  Our  hope  is,  that  the  prudence  and  patriotism  of  the 
States,  and  the  wisdom  of  this  government,  will  prevent  that 
catastrophe.  For  myself,  I  will  pursue  the  advice  of  the  court 
of  Deveaux's  case;  I  will  avoid  nice  metaphysical  subtilties, 
and  all  useless  theories;  I  will  keep  my  feet  out  of  the  traps  in 
general  definition;  I  will  keep  my  feet  out  of  all  traps;  I  will 
keep  to  things  as  they  are,  and  go  no  farther  to  inquire  what 
they  might  be,  if  they  were  not  what  they  are.  The  States 
of  this  Union,  as  States,  are  subject  to  all  the  voluntary  and 
customary  law  of  nations." 


128  Daniel  Webster 

The  opinion  of  the  court  in  the  case  of  the  Bank 
of  Augusta  vs.  Earle  was  delivered  by  Chief 
Justice  Taney,  who  had  been  appointed  by  Presi 
dent  Jackson  to  succeed  Chief  Justice  Marshall. 
The  court  sustained  the  position  secondly  main 
tained  by  Webster  in  the  following  language : 

"  It  has,  however,  been  supposed  that  the  rules  of  comity 
between  foreign  nations  do  not  apply  to  the  states  of  this 
Union;  that  they  extend  to  one  another  no  other  rights  than 
those  which  are  given  by  the  Constitution  of  the  United 
States;  and  that  the  courts  of  the  general  government  are  not 
at  liberty  to  presume,  in  the  absence  of  all  legislation  on  the 
subject,  that  a  state  has  adopted  the  comity  of  nations  towards 
the  other  states,  as  a  part  of  its  jurisprudence;  or  that  it  ac 
knowledges  any  rights  but  those  which  are  secured  by  the  Con 
stitution  of  the  United  States.  The  Court  thinks  otherwise. 
The  intimate  union  of  these  States,  as  members  of  the  same 
great  political  family;  the  deep  and  vital  interests  which  bind 
them  so  closely  together,  should  lead  us,  in  the  absence  of 
proof  to  the  contrary,  to  presume  a  greater  degree  of  comity 
and  friendship,  and  kindness  towards  one  another,  than  we 
should  be  authorized  to  presume  between  foreign  nations. 
And  when  (as  without  doubt  must  occasionally  happen),  the 
interest  or  policy  of  any  State  requires  it  to  restrict  the  rule, 
it  has  but  to  declare  its  will,  and  the  legal  presumption  is  at 
once  at  an  end.  But  until  this  is  done,  upon  what  grounds 
could  this  Court  refuse  to  administer  the  law  of  international 
comity  between  these  States  ?  They  are  sovereign  States;  and 
the  history  of  the  past,  and  the  events  which  are  daily  occur 
ring,  furnish  the  strongest  evidence  that  they  have  adopted 
towards  each  other  the  laws  of  comity  in  their  fullest  extent. " 

1  13  Peters,  590.  This  opinion  was  in  1903  quoted  and  applied  by  the 
New  York  Court  of  Appeals  to  support  the  validity  of  a  statute  punishing 
as  perjury  the  making  in  New  York  of  a  false  affidavit  required  by  the  laws 
of  another  State.  People  -vs.  O'Farrell,  175  N.  Y.,  323. 


CHAPTER  XIV 

GIRARD  WILL  CASE RHODE   ISLAND   BOUNDARY    CASE 

CASE    OF    "  THE    LEXINGTON  " 

DURING  the  administration  of  Harrison  and  Ty 
ler,  Mr.  Webster  rarely  appeared  in  the  Supreme 
Court.  During  most  of  that  time  he  was  Secretary 
of  State,  and  was  negotiating  the  Ashburton  treaty 
with  Great  Britain.  When  he  resigned  and  re 
turned  to  Boston,  he  was  engrossed  with  his  prac 
tice  in  Massachusetts. 

There  were  three  cases  decided  at  the  January 
term  of  1841  in  which  he  appeared,  one  in  1842, 
one  in  1843  and  two  in  1844.  In  one  of  these 
latter,  the  Girard  Will  case,1  he  made  his  famous 
argument  in  support  of  the  proposition  that  a  will, 
which  by  necessary  effect  compelled  the  instruction 
of  young  men  without  any  religious  teaching  what 
ever,  was  opposed  to  public  policy,  and  invalid. 
The  Court,  however,  construed  the  will  differently, 
so  as  to  hold  that  no  such  prohibition  was  to  be 
implied,  and  the  main  question  which  he  argued 
was  not  decided.2 

Another  of  the  cases  argued  during  this  time 
was  the  boundary  controversy  between  the  State  of 

1  Vidal  vs.  Girard's  Executors,  2  How.,  127. 
s  His  speech  is  in  6  Webster's  Works,  p.  133. 

129 


i3°  Daniel  Webster 

Rhode  Island  and  the  Commonwealth  of  Massa 
chusetts.1  The  final  argument  in  this  case  was  at 
the  December  term  of  1845.*  In  tms  case  Web 
ster  and  Choate  were  together,  and  succeeded  in  de 
feating  the  claim  of  the  State  of  Rhode  Island  to 
a  revision  of  the  boundary  line  which  had  been  run 
by  Joint  Commission  in  1711.  This  was  the  case 
in  which  Rufus  Choate  gave  the  famous  description 
of  the  line  as  laid  down  by  the  original  charter : 
"  beginning  at  a  hive  of  bees  in  swarming  time  and 
running  thence  to  a  hundred  foxes  with  firebrands 
tied  to  their  tails." 

In  1845,  Webster  succeeded  Choate  as  Senator 
from  Massachusetts.  Two  years  later,  he  argued 
for  the  libellants  the  famous  case  of  the  New  Jersey 
Steam  Navigation  Company  against  the  Merchants 
Bank  of  Boston,  decided  early  in  i848.3  In  this 
case  his  contention  was  sustained  by  the  Court, 
and  it  was  held  that  the  Admiralty  jurisdiction  of 
the  courts  of  the  United  States  extended  to  a  libel 
in  personam  upon  a  contract  for  the  transportation 
of  specie  upon  the  waters  of  Long  Island  Sound, 
from  New  York  to  Stonington,  and  thence  by  land 
to  Boston,  and  that  an  agreement  in  the  bill  of 
lading,  purporting  to  exempt  the  carrier  from  the 
consequences  of  negligence,  was  void,  as  against 
public  policy  ;  although  it  was  conceded  in  the 
opinion  delivered  by  Mr.  Justice  Nelson  that  the 

1  15  Peters,  233.  8  4  Howard,  591. 

3  6  Howard,  344.  It  may  be  noted  here  for  the  benefit  of  the  lay  reader, 
that  in  the  Admiralty  courts  the  plaintiff  is  known  as  libellant.  He  files  his 
libel  at  the  beginning  of  the  suit. 


Admiralty  Jurisdiction  Inland  Waters    131 

exemption  would  be  valid  if  the  loss  had  not  been 
occasioned  by  negligence. 

This  litigation  grew  out  of  the  burning  of  the 
steamboat  Lexington,  upon  Long  Island  Sound. 
The  evidence  showed  that  the  vessel  was  im 
properly  constructed,  and  inadequately  equipped, 
that  no  safeguards  were  used  against  overheating 
of  the  smokestacks,  that  the  combustible  cargo  was 
stowed  in  dangerous  proximity  to  them,  and  that 
there  were  no  suitable  appliances  for  extinguishing 
the  fire  which  broke  out.  In  fact,  the  only  buckets 
that  appeared  to  be  available  were  the  little  barrels 
in  which  the  silver  dollars  of  the  libellant  were 
packed.  These  were  broken  open,  the  contents 
emptied  and  the  barrels  filled  with  water,  which 
was  thrown  on  the  flames.  But  these  gained  too 
rapidly,  the  boat  herself  was  consumed,  and  most 
of  her  passengers  suffocated,  or  drowned.  In  such 
a  case  even  the  statute  for  the  limitation  of  the 
liability  of  carriers  would  have  been  no  defence. 

Mr.  Webster's  argument  in  this  case  is  not  con 
tained  in  any  edition  of  his  works,  and  the  report  in 
Howard  l  is  meagre.  But  enough  appears  to  show 
that  he  illuminated  the  grant  in  the  Constitution  of 
Admiralty  jurisdiction  to  the  courts  of  the  United 
States  by  a  clear  exposition,  not  only  of  the  Eng 
lish,  but  of  the  European  Admiralty  law,  and  a  dem 
onstration  of  the  importance  to  the  commerce  of 
the  country  of  a  liberal  interpretation  of  the  grant. 
Mr.  Justice  Daniels  was  at  that  time  the  adver 
sary  of  the  Admiralty,  and  in  several  dissenting 

1  6  Howard,  344. 


i32  Daniel  Webster 

opinions  did  his  best  to  convince  the  Court  that 
the  jurisdiction  of  the  Admiralty  ought  to  be  re 
stricted  within  the  narrowest  limits.  Lord  Coke 
himself  could  not  have  done  better. 

But  Webster's  argument  prevailed.  A  portion 
of  this  argument  should  be  quoted  here.  The 
principles  stated  in  it,  which  the  reporter  says  he 
"  illustrated  "  in  his  argument,  have  been  followed 
by  the  Supreme  Court  ever  since  : 

"  The  court  having  decided  that  the  constitutional  grant  of 
admiralty  and  maritime  jurisdiction  to  the  government  of  the 
United  States  is  not  to  be  limited  by  the  rules  which  restrained 
the  English  admiralty  in  1789,  it  follows  of  course,  that  the 
jurisdiction  of  the  courts  of  the  United  States  should  naturally 
be  coextensive  with  the  granted  power,  unless  Congress  has 
otherwise  declared;  and  as  the  Judiciary  Act  of  1789,  section 
ninth,  expressly  vests  in  the  District  Courts  of  the  United 
States  original  cognizance  of  all  civil  causes  of  admiralty  and 
maritime  jurisdiction,  then  whatever  this  court  adjudges  to  be 
a  case  of  admiralty  and  maritime  jurisdiction  belongs  originally 
to  the  District  Court,  and  invests  that  court  necessarily  with 
the  power  of  all  process  and  proceedings  fit  and  proper  for  the 
exercise  of  its  jurisdiction,  subject  to  regulation  by  Congress. 

"It  is  not,  probably,  doubted  that  the  grant  of  admiralty 
and  maritime  jurisdiction  to  the  government  of  the  United 
States  is  exclusive,  or  that  no  State  now  retains  any  such 
power;  and  so  absolutely  indispensable  has  such  a  jurisdiction 
been  found  to  be  on  the  interior  lakes  and  rivers,  that  Con 
gress  has  been  obliged  to  provide,  and  has  provided,  for  its 
exercise  on  those  waters.  See  Act  of  1845. 

"  The  only  objection  to  this  necessary  law  seems  to  be,  that 
Congress,  in  passing  it,  was  shivering  and  trembling  under  the 
apprehension  of  what  might  be  the  ultimate  consequence  of 
the  decision  of  this  court  in  the  case  of  the  Thomas  Jefferson, 
It  pitched  the  power  upon  a  wrong  location. 


Admiralty  Jurisdiction  Inland  Waters    133 

"  Its  proper  home  was  in  the  admiralty  and  maritime  grant, 
as  in  all  reason,  and  in  the  common  sense  of  all  mankind  out 
of  England,  admiralty  and  maritime  jurisdiction  ought  to  ex 
tend,  and  does  extend,  to  all  navigable  waters,  fresh  or  salt."1 

From  the  time  of  the  decision  of  this  case  to  the 
present,  most  maritime  causes  have  been  brought 
in  the  federal  courts  of  Admiralty.  Their  decisions 
constitute  a  body  of  commercial  law,  relating  es 
pecially  to  bills  of  lading,  charter  parties,  marine 
insurance  and  collisions,  which  is  liberal  in  its  char 
ter,  harmonious  in  most  respects  with  the  jurispru 
dence  of  England  and  the  continent  of  Europe  and 
which  has  played  no  small  part  in  the  expansion  of 
American  commerce.  It  is  true  that  the  more  nar 
row  spirit  which  has  prevailed  in  federal  legislation 
forbids  American  citizens  to  buy  foreign-built  ships. 
But  their  charter  is  not  forbidden,  and  American 
citizens,  under  foreign  flags,  and  in  chartered  ves 
sels,  already  reap  their  share  of  the  harvest  of  ocean 
commerce.  That  their  business  has  not  been  re 
stricted  by  the  conflicting  decisions  of  the  courts 
of  different  States,  is  due  in  large  degree,  not  only 
to  Mr.  Webster's  argument  in  this  case  of  the  Lex 
ington,  but  to  the  canons  of  interpretation,  just,  be 
cause  broad  and  liberal,  which,  more  than  any  other 
man,  he  aided  to  establish. 

'6  Howard,  U.  S.  Rep.  378. 


CHAPTER  XV 

EMINENT     DOMAIN     OVER     FRANCHISE WEST     RIVER 

BRIDGE    CASE 

AT  the  December  term,  1847,  Mr.  Webster  ar 
gued  the  case  of  the  West  River  Bridge  Co.  vs. 
Dix  and  the  Towns  of  Brattleboro  and  Dum- 
merston.1  In  this  case  it  was  held  that  the  consti 
tutional  power  of  eminent  domain  extended  to  a 
franchise  which  had  been  given  by  the  State  to  a 
private  corporation,  and  that  therefore  the  State 
could  take  a  toll-bridge  which  had  been  built  by  a 
private  corporation,  appropriate  it  to  the  public 
use,  and  make  it  a  free  bridge,  upon  making  the 
original  owner  compensation  in  the  manner  regu 
lated  by  law,  and  that  this  did  not  impair  the  obli 
gation  of  the  contract  between  the  State  and  the 
original  grantee. 

In  this  case  the  judgment  of  the  Supreme  Court 
of  Vermont  was  affirmed.  The  Supreme  Court  of 
the  United  States  was  of  opinion  that  the  rights  of 
the  citizen  were  sufficiently  protected  by  the  pro 
visions  of  the  statute  for  ascertaining  and  paying 
the  value  of  the  franchise.  Webster's  argument, 
which  is  not  included  in  his  published  works,  puts 
the  case  so  clearly  that  it  deserves  to  be  extracted 

1 6  Howard,  507. 
134 


Eminent  Domain  over  Franchise      135 

from  the  volume  of  the  reports  in  which  it  is  now 
laid  away.1 

"All  the  power  of  the  States,  as  sovereign  States,  must 
always  be  subject  to  the  limitations  expressed  in  the  United 
States  Constitution,  nor  can  they  any  more  be  permitted  to 
overstep  such  limitations  of  power  by  the  exercise  of  one 
branch  of  sovereignty  than  another.  What  is  forbidden  to 
them,  and  which  they  cannot  do  directly,  they  should  not  be 
permitted  to  do  by  color,  pretence,  or  oblique  indirection. 
Among  other  matters  limiting  and  restricting  State  sovereignty 
is  this: — No  State  shall  pass  '  any  law  impairing  the  obligation 
of  contracts. '  The  power  of  eminent  domain,  like  every  other 
sovereign  power  in  the  State,  is  subject  to  this  limitation  and 
prohibition.  Laws  creating  corporations,  with  powers  for  the 
benefit  of  the  individual  corporators,  even  though  for  public  pur 
poses,  like  turnpikes,  railroads,  toll-bridges,  etc.,  have  always, 
and  by  almost  every  court  in  the  Union,  and  by  this  court, 
been  decided  to  be  contracts  between  the  government  and  the 
corporators.  The  plaintiff's  grant  and  franchise  was  a  con 
tract  of  the  State  for  one  hundred  years,  and  by  this  act 
of  1839,  and  the  proceedings  under  it,  that  contract  is  not 
only  impaired,  but  utterly  destroyed;  and  this  a  State  can  no 
more  do  under  the  power  of  eminent  domain,  than  under  the 
law-making  power,  or  any  other  power  of  sovereignty.  It  is 
said,  the  citizen  is  safe,  because,  under  the  exercise  of  the 
eminent  domain,  he  is  to  receive  compensation  for  whatever  is 
taken.  That  furnishes  no  security,  for  the  mode  and  amount 
of  compensaion  is  fixed  ex  parte  by  the  government  and  its 
agents;  and,  besides  that,  the  prohibition  of  the  Constitution 
is  general,  and  contains  no  exception  for  this  exercise  of  this 
power  of  eminent  domain  as  to  contracts. 

"  If  the  provision  of  the  Constitution,  which  forbids  the  im 
pairing  of  contracts,  does  not  extend  to  the  contracts  of  the 
State  governments,  and  they  are  left  subject  to  be  destroyed 
by  the  eminent  domain,  then  there  is  an  end  of  public  faith. 
It  is  said,  by  every  writer,  and  by  almost  every  court  which 

1  6  Howard  U.  S.  Rep.,  517. 


Daniel  Webster 


has  passed  on  this  subject,  the  eminent  domain,  that  it  must 
rest  with  '  the  legislative  power  to  determine  when  public  uses 
require  the  assumption  of  private  property,'  and  to  regulate 
the  mode  of  compensation.  (2  Kent's  Comm.,  340.)  If  to 
this  it  be  holden  that  this  extends  even  to  contracts  of  the  gov 
ernment  itself,  then  it  follows,  that  the  State  of  Mississippi,  or 
any  other  State  indebted,  has  but  by  law  to  declare  that  the 
public  good  requires  that  the  State  debts,  bonds,  etc.,  shall  be 
taken  for  the  public  use,  and  appoint  commissioners  to  fix 
their  present  market  value  to  the  holders,  and,  on  payment 
thereof,  declare  them  extinguished.  Such  is  the  real  character 
of  this  transaction.  '  ' 


CHAPTER  XVI 

POWER  TO   REORGANIZE   STATE    GOVERNMENTS DORR 

REBELLION 

THE  Colonial  Charter  of  Rhode  Island  had,  in 
1841,  become  in  many  particulars  inapplicable  to 
the  changed  conditions  of  the  State.  Attempts  to 
amend  it,  in  the  manner  prescribed  by  law,  had 
failed.  Then  those  who  were  dissatisfied  attempted 
to  establish  a  new  government  by  calling  a  consti 
tutional  convention  without  any  express  authority 
of  law.  A  constitution  was  framed  and  submitted 
to  the  people  at  an  election.  The  opponents  of 
the  new  constitution  refused  to  recognize  the  elec 
tion  or  to  vote.  An  election  did,  however,  take 
place,  which  was  claimed  to  be  valid  by  the  par 
ties  interested  in  it,  and  at  which  they  claimed 
that  a  majority  of  male  citizens  of  twenty-one 
years  of  age  voted  for  the  new  constitution. 
They  elected  a  new  set  of  officials,  Governor, 
Legislature  and  all.  Thomas  W.  Dorr  was  the 
head  of  the  new  government,  and  from  him  it 
took  its  name.  The  government  under  the  old 
charter  maintained  its  own  authority,  declared 
martial  law,  suppressed  the  new  government  and 
Dorr  himself  was  tried  for  treason  in  1844,  in 

137 


138  Daniel  Webster 

the  Supreme  Court  of  Rhode  Island,  was  con 
victed  and  sentenced  to  imprisonment  for  life.1 
The  President  of  the  United  States  recognized  the 
old  and  not  the  new  government.  Nevertheless, 
Dorr's  adherents  finally  tested  the  question  as  to 
the  validity  of  their  proceedings,  in  an  action  of 
trespass  brought  in  the  Circuit  Court  of  the  United 
States,  and  reviewed  on  writ  of  error  in  the  Su 
preme  Court  in  i848.2 

That  court  followed  Webster's  argument  and 
held  that  the  determination  of  what  was  the  duly 
constituted  government  of  a  State  was  a  political 
and  not  a  judicial  question  ;  that  Congress  by  the 
Act  of  February  28,  1795,  had  authorized  the  Presi 
dent  to  decide  this  question,  and  that  his  decision 
was  final.  It  further  held  that  a  State  Legislature, 
in  the  presence  of  armed  rebellion,  had  the  power 
to  declare  martial  law,  and  that  it  was  for  the 
Legislature  to  judge  whether  the  exigency  was 
such  as  to  require  this  declaration.8 

Mr.  Webster's  argument  in  this  case  is  included 
in  his  published  works.4  A  brief  extract  from  it 
will  show  his  mastery  of  the  principles  underlying 
the  case  and  which  were  decisive  of  the  controversy. 
Equally  decisive  were  they  of  the  later  controversy 

1  Dorr  was  a  member  of  one  of  the  old  patrician  families  of  Rhode  Island. 
His  zealous  advocacy  of  the  popular  cause  alienated  his  friends  and  kins 
folk,  and  although  he  was  pardoned,  after  a  short  imprisonment,  he  died 
soon  after,  a  heartbroken  man. 

sAn  interesting  account  of  this  "Dorr  Rebellion"  is  to  be  found  in  a 
speech  of  Henry  Clay,  delivered  at  Lexington,  Ky.,  June  9,  1842.  Clay's 
Works,  vol.  vi.,  p.  380. 

3 Luther  vs.  Borden,  7  How.,  U.  S.  Rep.,  i  (1848). 

4  Webster's  Works,  vol.  vi.,  p.  217. 


Dorr  Rebellion  139 

between  North  and  South.     As  his  argument  is 
reported  by  Howard,  he  said1 : 

"  This  is  an  unusual  case.  During  the  years  1841  and  1842, 
great  agitation  existed  in  Rhode  Island.  In  June,  1842,  it  sub 
sided.  The  Legislature  passed  laws  for  the  punishment  of 
offenders,  and  declared  martial  law.  The  grand  jury  indicted 
Dorr  for  treason.  His  trial  came  on  in  1844,  when  he  was  con 
victed  and  sentenced  to  imprisonment  for  life.  Here  is  a  suit 
in  which  the  opposite  counsel  say  that  a  great  mistake  has  hap 
pened  in  the  Courts  of  Rhode  Island;  that  Governor  King 
should  have  been  indicted.  They  wish  the  Governor  and  the 
rebel  to  change  places.  If  the  Court  can  take  cognizance  of 
this  question,  which  I  do  not  think,  it  is  not  to  be  regretted 
that  it  has  been  brought  here.  It  is  said  to  involve  the  funda 
mental  principles  of  American  liberty.  This  is  true.  It  is 
always  proper  to  discuss  these,  if  the  appeal  be  made  to  reason, 
and  not  to  the  passions.  There  are  certain  principles  of  lib 
erty  which  have  existed  in  other  countries,  such  as  life,  the 
right  of  property,  trial  by  jury,  etc.  Our  ancestors  brought 
with  them  all  which  they  thought  valuable  in  England,  and 
left  behind  them  all  which  they  thought  were  not.  Whilst 
colonies,  they  sympathized  with  Englishmen  in  the  Revolution 
of  1688.  There  was  a  general  rejoicing.  But  in  1776  the 
American  people  adopted  principles  more  especially  adapted 
to  their  condition.  They  can  be  traced  through  the  Confed 
eration  and  the  present  Constitution,  and  our  principles  of 
liberty  have  now  become  exclusively  American.  They  are 
distinctly  marked.  We  changed  the  government  where  it 
required  change;  where  we  found  a  good  one,  we  left  it. 
Conservatism  is  visible  throughout.  Let  me  state  what  I 
understand  these  principles  to  be. 

'  The  first  is,  that  the  people  are  the  source  of  all  political 
power.  Every  one  believes  this.  Where  else  is  there  any 
power  ?  There  is  no  hereditary  legislature,  no  large  property, 

1  7  Howard,  U.  S.  Rep.,  29.  Whether  this  abstract  was  prepared  by  Web 
ster  himself  cannot  be  ascertained.  But  it  is  a  fair  summary  of  his  argument. 


Daniel  Webster 


no  throne,  no  primogeniture.  Everybody  may  buy  and  sell. 
There  is  an  equality  of  rights.  Any  one  who  should  look  to 
any  other  source  of  power  than  the  people  would  be  as  much 
out  of  his  mind  as  Don  Quixote,  who  imagined  that  he  saw 
things  which  did  not  exist.  Let  us  all  admit  that  the  people 
are  sovereign.  Jay  said  that  in  this  country  there  were  many 
sovereigns  and  no  subject.  A  portion  of  this  sovereign  power 
has  been  delegated  to  government,  which  represents  and  speaks 
the  will  of  the  people  as  far  as  they  chose  to  delegate  their 
power.  Congress  have  not  all.  The  State  Governments  have 
not  all.  The  Constitution  of  the  United  States  does  not  speak 
of  the  government.  It  says  the  United  States.  Nor  does  it 
speak  of  State  governments.  It  says  the  States;  but  it  recog 
nizes  governments  as  existing.  The  people  must  have  repre 
sentatives.  In  England,  the  representative  system  originated, 
not  as  a  matter  of  right,  but  because  it  was  called  by  the  king. 
The  people  complained  sometimes  that  they  had  to  send  up 
burgesses.  At  last  there  grew  up  a  constitutional  representa 
tion  of  the  people.  In  our  system  it  grew  up  differently.  It 
was  because  the  people  could  not  act  in  mass,  and  the  right  to 
choose  a  representative  is  every  man's  portion  of  sovereign 
power.  Suffrage  is  a  delegation  of  political  power  to  some  in 
dividual.  Hence  the  right  must  be  guarded  and  protected 
against  force  or  fraud.  That  is  one  principle.  Another  is, 
that  the  qualification  which  entitles  a  man  to  vote  must  be 
prescribed  by  previous  laws,  directing  how  it  is  to  be  exercised, 
and  also  that  the  results  shall  be  certified  to  some  central 
power  so  that  the  vote  may  tell.  We  know  no  other  principle. 
If  you  go  beyond  these,  you  go  wide  of  the  American  track. 
One  principle  is,  that  the  people  often  limit  their  government; 
another,  that  they  often  limit  themselves.  They  secure  them 
selves  against  sudden  changes  by  mere  majorities.  The  fifth 
article  of  the  Constitution  of  the  United  States  is  a  clear  proof 
of  this.  The  necessity  of  having  a  concurrence  of  two  thirds 
of  both  houses  of  Congress  to  propose  amendments,  and  of 
their  subsequent  ratification  by  three  fourths  of  the  States, 
gives  no  countenance  to  the  principles  of  the  Dorr  men,  be 
cause  the  people  have  chosen  so  to  limit  themselves.  All 


Dorr  Rebellion 


qualifications  which  persons  are  required  to  possess  before 
they  can  be  elected  are,  in  fact,  limitations  upon  the  power  of 
the  electors;  and  so  are  rules  requiring  them  to  vote  only  at 
particular  times  and  places.  Our  American  mode  of  govern 
ment  does  not  draw  any  power  from  tumultuous  assemblages. 
If  anything  is  established  in  that  way,  it  is  deceptive.  It  is 
true  that  at  the  Revolution  governments  were  forcibly  de 
stroyed.  But  what  did  the  people  then  do  ?  They  got  to 
gether  and  took  the  necessary  steps  to  frame  new  governments, 
as  they  did  in  England  when  James  the  Second  abdicated. 
William  asked  Parliament  to  assemble  and  provide  for  the  case. 
It  was  a  revolution,  not  because  there  was  a  change  in  the  per 
son  of  the  sovereign,  but  because  there  was  a  hiatus  which 
must  be  filled.  It  has  been  said  by  the  opposing  counsel,  that 
the  people  can  get  together,  call  themselves  so  many  thou 
sands,  and  establish  whatever  government  they  please.  But 
others  must  have  the  same  right.  We  have  then  a  stormy 
South  American  liberty,  supported  by  arms  to-day  and  crushed 
by  arms  to-morrow.  Our  theory  places  a  beautiful  face  on 
liberty,  and  makes  it  powerful  for  good,  producing  no  tumults. 
When  it  is  necessary  to  ascertain  the  will  of  the  people,  the 
legislature  must  provide  the  means  of  ascertaining  it.  The 
Constitution  of  the  United  States  was  established  in  this  way. 
It  was  recommended  to  the  States  to  send  delegates  to  a  con 
vention.  They  did  so.  Then  it  was  recommended  that  the 
States  should  ascertain  the  will  of  the  people.  Nobody  sug 
gested  any  other  mode." 

A  curious  reference  to  this  case,  and  to  Mr. 
Webster's  practice  in  the  Supreme  Court,  is  to  be 
found  in  a  letter  to  his  son,  dated  Washington, 
January  29,  1848  *  : 

"  Neither  the  Senate  nor  the  court  sit  to-day;  so  I  am  at 
home  all  day,  preparing  for  a  long  cause  from  Mississippi, 

1  Private  Correspondence,  vol.  ii.,  p.  267.  His  argument  was  made  the 
day  before. 


142  Daniel  Webster 

which  comes  on  for  argument  on  Monday  morning.  I  be 
lieve  we  have  pretty  effectually  suppressed  the  Rhode  Island 
insurrection. 

"It  so  happens  that  I  have  a  great  deal  more  to  do  in  court 
this  year  than  at  any  time  since  I  went  into  the  Department  of 
State.  The  work  is  hard,  not  so  much  in  the  preparation  of 
causes,  as  in  sitting  and  taking  notes  of  arguments  for  seven  or 
eight  days,  as  sometimes  happens.  I  do  not  see  that  I  shall 
be  able  to  be  out  of  Court  much  for  a  month  to  come. 

"  I  attend  to  causes  pretty  closely,  although,  now  that  I  am 
sixty-six  years  old,  I  take  it  for  granted  that  people  begin  to 
say,  '  He  is  not  the  man  he  was. '  In  some  respects  it  is  cer 
tainly  true,  perhaps  in  many. ' ' 

It  should  be  noted  that  the  Dorr  rebellion,  with 
its  unsuccessful  military  attempt,  in  May,  1842,  to 
get  possession  of  the  State  Arsenal,  did  lead,  in  the 
following  year,  to  the  making  of  a  new  constitution 
in  the  manner  authorized  by  law.  This  relieved 
much  of  the  inequality  and  injustice  of  the  old 
charter.  This  new  constitution  was  framed  by  a 
convention  called  by  the  charter  government  and 
ratified  by  the  people.  All  of  which  happened  be 
fore  the  argument  and  decision  of  the  Supreme 
Court.  Such  is  "the  law's  delay."  The  truth  is 
that,  under  our  system  of  jurisprudence,  the  deci 
sion  of  important  cases  is  vastly  more  important 
to  the  public  than  to  the  litigants.  There  is  some 
excuse,  therefore,  for  the  deliberation  with  which 
they  are  commonly  brought  to  a  final  hearing  in 
the  courts  of  last  resort.  This  is  eminently  true 
of  the  case  under  consideration.  The  rules  estab 
lished  in  it  are  often  invoked,  and  make  continually 
for  order  and  obedience  to  law. 


CHAPTER  XVII 

STATE    POWER   OVER   FOREIGN    COMMERCE PASSEN 
GER   TAX    CASES 

AT  a  later  period  in  his  life,  and  when  that  sun 
was  drawing  near  the  horizon,  which  was  at  meri 
dian  when  Gibbons  and  Ogden  was  argued,  Mr. 
Webster,  with  equal  force  of  logic  and  power  of 
conviction,  vindicated  the  right  of  our  foreign  com 
merce  to  be  free  from  the  exactions  of  the  several 
States.  The  Passenger  Tax  cases,  as  they  are 
called,  were  appeals  from  judgments  sustaining  the 
power  of  the  States  to  impose  taxes  upon  immigra 
tion.  Massachusetts  and  New  York  had  enacted 
statutes  levying  a  tax  upon  every  immigrant  com 
ing  into  their  ports.  The  amount  was  not  great, — 
neither  was  the  tax  on  tea.  But  the  importance  of 
the  principle  was  supreme.  One  main  object  in 
the  formation  of  our  government  was  that  com 
mercial  intercourse  between  this  country  and  foreign 
countries  should  be  open  alike  to  all,  and  that  no 
citizen  or  State  should  directly  or  indirectly  ac 
quire  a  monopoly  of  it. 

The  position  of  the  controversy  in  these  cases 
was  this  : 

In  New  York  vs.  Miln,  the  Supreme  Court  had 
held  that  it  was  competent  for  a  State  Legislature, 

143 


144  Daniel  Webster 

in  the  absence  of  Congressional  legislation  on  the 
subject,  to  require  each  master  of  a  vessel,  arriving 
in  a  port  of  the  United  States,  to  make  to  the  local 
authorities  of  the  State  a  report  giving  the  names 
of  the  passengers  on  board,  with  sundry  particulars 
concerning  them.  Mr.  Justice  Story  dissented  from 
the  decision,  and  stated  that  Chief  Justice  Marshall, 
who  had  died  since  the  appeal  was  first  argued, 
concurred  in  this  dissent.1 

After  this,  New  York  and  Massachusetts  claimed 
that  this  decision  of  the  court  permitted  the  several 
States  to  regulate  the  entrance  of  passengers  into 
their  respective  ports,  until  Congress  should  pro 
vide  to  the  contrary.  Accordingly,  they  imposed 
a  tax  upon  each  foreigner  entering  the  United 
States,  and  applied  the  proceeds  of  the  taxes  thus 
levied  to  the  maintenance  of  their  immigration 
offices. 

The  shipowners  contested  the  validity  of  these 
laws.  The  New  York  appeal 2  was  argued  by  Mr. 
Webster  at  the  December  term,  1845,  and  again  at 
the  December  term,  1847.  He  argued  the  Massa 
chusetts  case3  at  the  December  term,  1846,  and 
again  in  December,  1848.  These  re-arguments  were 
required  by  the  diversity  of  opinion  that  developed 
among  the  judges.  The  constitutional  law  of  the 
country  was  still  in  process  of  formation.  Only 
two  judges,  McLean  of  Ohio  and  Wayne  of 
Georgia,  were  left  of  those  who  sat  with  Marshall. 

1  ii  Peters,  161. 

1  Smith  vs.  Turner,  Health  Commissioner  of  the  Port  of  New  York. 

*  Norris  vs.  The  City  of  Boston. 


State  Power  over  Foreign  Commerce    145 

Jackson  and  Van  Buren  had  placed  some  strict  con- 
structionists  upon  the  bench.  It  was  well  that  the 
commanding  genius  of  Webster  remained,  to  main 
tain  the  principles  of  construction  which  he  and 
Marshall  had  united  to  establish.  Taney,  who  had 
been  chosen  by  Jackson  as  his  Attorney-General, 
and  was  appointed  by  him  Chief  Justice,  when 
Marshall  died,  led  the  new  school  that  was  aiming 
to  limit  and  explain  away  the  long  series  of  de 
cisions  to  which  we  have  already  called  attention. 
He  maintained  that  the  power  to  regulate  com 
merce  remained  in  the  States,  and  could  be  exer 
cised  until  Congress  should  intervene,  and  that 
passenger  travel  was  not  commerce,  but  that  this 
word  in  the  Constitution  applied  only  to  traffic  in 
goods. 

The  only  part  of  Webster's  argument  that  is  pre 
served  in  the  reports  of  Mr.  Howard  is  the  brief 
statement  of  points  then  required  by  the  rules  of 
the  Court,  which  is  as  follows : 

"  Norris  v.  City  of  Boston.1 

"  On  the  part  of  the  plaintiff  in  error  it  will  be  contended: 

"  i.  That  the  act  in  question  is  a  regulation  of  commerce  of 
the  strictest  and  most  important  class,  and  that  Congress  pos 
sesses  the  exclusive  power  of  making  such  a  regulation. 

"And  hereunder  will  be  cited  n  Pet.  102;  4  Wash.  C.  C. 
379;  3  How.  212;  14  Pet.  541;  4  Met.  285;  2  Pet.  245;  9 
Wheat,  i;  12  Wheat.  436;  Federalist,  No.  42;  3  Cow.  473;  i 
Kent,  5th  ed. ;  2  Story's  Com.  on  Const.  506;  15  Pet.  506;  3 
N.  H.  499. 

"  2.  That  the  act  is  an  impost  or  duty  on  imports,  and  so 
expressly  prohibited  by  the  Constitution,  or  is  in  fraud  of  that 
prohibition. 

1  7  Howard,  288,  289. 


146  Daniel  Webster 

"  And  hereunder  will  be  cited  4  Met.  285;  12  Wheat.  436; 
Dig.  Lib.  i,  tit.  3,  De  Leg.  et  Senat.  Cons.  Sect.  29;  3  Cow. 
738;  14  Pet.  570. 

"3.  That  it  is  repugnant  to  the  actual  regulations  and 
legally  manifested  will  of  Congress.  9  Wheat.  210;  4  Met. 
295;  ii  Pet.  137;  12  Wheat.  446;  5  Wheat.  22;  6  Pet.  515; 
15  Pet.  509;  14  Pet.  576;  Laws  U.  S.  1799,  c.  128,  Sec.  46; 
i  Story's  Laws,  612,  1819,  c.  170;  3  Story's  Laws,  1722, 
Laws  of  Naturalization,  1802,  c.  28;  1816,  c.  32;  1824,  c.  186. 

"  D.  WEBSTER, 
"  R.  CHOATE." 

There  is  also  a  brief  newspaper  account  of 
the  argument,  reprinted  in  the  last  edition  of  his 
Works.1 

In  a  letter  written  to  Mr.  Blatchford  from  Wash 
ington,  on  Saturday,  the  third  of  February,  1849, 
Mr.  Webster  thus  speaks  of  the  cases  and  his 
share  in  them z : 

"  There  is  great  interest  here  to  hear  the  opinions  of  the 
judges  on  Tuesday.  I  wish  you  could  be  here.  Several 
opinions  will  be  read,  drawn  with  the  best  abilities  of  the 
writers.  In  my  poor  judgment,  the  decision  will  be  more  im 
portant  to  the  country  than  any  decision  since  that  in  the 
steamboat  cause.  That  was  one  of  my  earliest  arguments  of  a 
constitutional  question.  This  will  probably  be,  and  I  am 
content  it  should  be,  the  last.  I  am  willing  to  confess  to  the 
vanity  of  thinking  that  my  efforts  in  these  two  cases  have  done 
something  toward  explaining  and  upholding  the  just  powers  of 
the  Government  of  the  United  States  on  the  great  subject  of 
commerce.  The  last,  though  by  far  the  most  laborious  and 
persevering,  has  been  made  under  great  discouragements  and 
evil  auspices.  Whatever  I  may  think  of  the  ability  of  my 

1  Webster's  Writings  and  Speeches,  vol.  xv.,  p.  402. 
3  Curtis's  Life  of  Webster,  vol.  ii.,  p.  373. 


State  Power  over  Foreign  Commerce    147 

argument,  and  I  do  not  think  highly  of  it,  I  yet  feel  pleasure 
in  reflecting  that  I  have  held  on  and  held  out  to  the  end." 

A  majority  of  the  Court,  Justices  McLean  (Ohio), 
Wayne  (Georgia),  Catron  (Tennessee),  Grier  (Penn 
sylvania)  and  McKinley  (Alabama),  concurred  in 
holding  that  the  transportation  of  passengers  was 
commerce,  and  that  the  acts  in  question  were  both 
unconstitutional. 

The  Chief  Justice  (Maryland),  and  Justices  Nel 
son  (New  York),  Daniels  (Virginia)  and  Woodbury 
(New  Hampshire)  dissented.  Daniels  was  the  strict 
est  of  strict  constructionists.  Calhoun  must  have 
felt  that  this  Virginia  judge  was  as  strenuous  as 
himself.  They  maintained  that  the  acts  in  question 
were  a  valid  exercise  of  the  police  power  and  also 
of  the  power  of  taxation,  both  of  which,  they  said, 
remained  in  the  States,  unimpaired  by  the  Consti 
tution  of  the  United  States,  except  where  it  con 
tained  a  specific  prohibition.  In  opposition  to  this 
the  Court  held,  as  stated  by  Mr.  Justice  Wayne1: 

"  i.  That  the  acts  of  New  York  and  Massachusetts  impos 
ing  a  tax  upon  passengers,  either  foreigners  or  citizens,  com 
ing  into  the  ports  in  those  States,  either  in  foreign  vessels  or 
vessels  of  the  United  States,  from  foreign  nations  or  from 
ports  in  the  United  States,  are  unconstitutional  and  void,  be 
ing  in  their  nature  regulations  of  commerce  contrary  to  the 
grant  in  the  constitution  to  congress  of  the  power  to  regulate 
commerce  with  foreign  nations  and  among  the  several  States. 

"2.  That  the  States  of  this  Union  cannot  constitutionally 
tax  the  commerce  of  the  United  States  for  the  purpose  of  pay 
ing  any  expense  incident  to  the  execution  of  their  police  laws; 

1  7  Howard,  283,  412. 


148  Daniel  Webster 

and  that  the  commerce  of  the  United  States  includes  an  inter 
course  of  persons,  as  well  as  the  importation  of  merchandise. 

"3.  That  the  acts  of  Massachusetts  and  New  York  in  ques 
tion  in  these  cases  conflict  with  treaty  stipulations  existing  be 
tween  the  United  States  and  Great  Britain,  permitting  the 
inhabitants  of  the  two  countries  '  freely  and  securely  to  come, 
with  their  ships  and  cargoes,  to  all  places,  ports,  and  rivers  in 
the  territories  of  each  country  to  which  other  foreigners  are 
permitted  to  come,  to  enter  into  the  same,  and  to  remain  and 
reside  in  any  parts  of  said  territories,  respectively;  also,  to 
hire  and  occupy  houses  and  warehouses  for  the  purposes  of 
their  commerce,  and  generally  the  merchants  and  traders  of 
each  nation  respectively  shall  enjoy  the  most  complete  pro 
tection  and  security  for  their  commerce,  but  subject  always  to 
the  laws  and  statutes  of  the  two  countries  respectively  ' ;  and 
that  said  laws  are  therefore  unconstitutional  and  void. 

"  4.  That  the  congress  of  the  United  States  having  by  sun 
dry  acts,  passed  at  different  times,  admitted  foreigners  into  the 
United  States  with  their  personal  luggage  and  tools  of  trade, 
free  from  all  duty  or  imposts,  the  acts  of  Massachusetts  and 
New  York,  imposing  any  tax  upon  foreigners  or  immigrants 
for  any  purpose  whatever,  whilst  the  vessel  is  in  transitu  to  her 
port  of  destination,  though  said  vessel  may  have  arrived  within 
the  jurisdictional  limits  of  either  of  the  States  of  Massachu 
setts  and  New  York,  and  before  the  passengers  have  been 
landed,  are  in  violation  of  said  acts  of  congress,  and  therefore 
unconstitutional  and  void. 

"5.  That  the  acts  of  Massachusetts  and  New  York,  so  far 
as  they  impose  any  obligation  upon  the  owners  or  consignees 
of  vessels,  or  upon  the  captains  of  vessels  or  freighters  of  the 
same,  arriving  in  the  ports  of  the  United  States  within  the  said 
States,  to  pay  any  tax  or  duty  of  any  kind  whatever,  or  to  be 
in  any  way  responsible  for  the  same,  for  passengers  arriving  in 
the  United  States,  or  coming  from  a  port  in  the  United  States> 
are  unconstitutional  and  void,  being  contrary  to  the  constitu 
tional  grant  to  congress  of  the  power  to  regulate  commerce 
with  foreign  nations  and  among  the  several  States,  and  to  the 
legislation  of  congress  under  the  said  power,  by  which  the 


State  Power  over  Foreign  Commerce    149 

United  States  have  been  laid  off  into  collection  districts,  and 
ports  of  entry  established  within  the  same,  and  commercial 
regulations  prescribed,  under  which  vessels,  their  cargoes  and 
passengers,  are  to  be  admitted  into  the  ports  of  the  United 
States,  as  well  from  abroad  as  from  other  ports  of  the  United 
States.  That  the  act  of  New  York  now  in  question,  so  far  as 
it  imposes  a  tax  upon  passengers  arriving  in  vessels  from  other 
ports  in  the  United  States,  is  properly  in  this  case  before  this 
court  for  construction,  and  that  the  said  tax  is  unconstitutional 
and  void.  That  the  pth  section  of  the  ist  article  of  the  con 
stitution  includes  within  it  the  migration  of  other  persons,  as 
well  as  the  importation  of  slaves,  and  in  terms  recognizes  that 
other  persons,  as  well  as  slaves,  may  be  the  subjects  of  im 
portation  and  commerce. 

"  6.  That  the  5th  clause  of  the  gth  section  of  the  ist  article 
of  the  constitution,  which  declares  that  '  no  preference  shall  be 
given  by  any  regulation  of  commerce  or  revenue  to  the  ports 
of  one  State  over  those  of  another  State;  nor  shall  vessels 
bound  to  or  from  one  State,  be  obliged  to  enter,  clear,  or  pay 
duties  in  another, '  is  a  limitation  upon  the  power  of  congress 
to  regulate  commerce  for  the  purpose  of  producing  entire 
commercial  equality  within  the  United  States,  and  also  a  pro 
hibition  upon  the  States  to  destroy  such  equality  by  any  legis 
lation  prescribing  a  condition  upon  which  vessels  bound  from 
one  State,  shall  enter  the  ports  of  another  State. 

"7.  That  the  acts  of  Massachusetts  and  New  York,  so  far 
as  they  impose  a  tax  upon  passengers,  are  unconstitutional 
and  void,  because  each  of  them  so  far  conflicts  with  the  ist 
clause  of  the  8th  section  of  the  ist  article  of  the  constitution, 
which  enjoins  that  all  duties,  imposts,  and  excises  shall  be 
uniform  throughout  the  United  States;  because  the  constitu 
tional  uniformity  enjoined  in  respect  to  duties  and  imposts  is 
as  real  and  obligatory  upon  the  States,  in  the  absence  of  all 
legislation  by  congress,  as  if  the  uniformity  had  been  made  by 
the  legislation  of  congress;  and  that  such  constitutional  uni 
formity  is  interfered  with  and  destroyed  by  any  State  imposing 
any  tax  upon  the  intercourse  of  persons  from  State  to  State, 
or  from  foreign  countries  to  the  United  States. 


i5°  Daniel  Webster 

"  8.  That  the  power  in  congress  to  regulate  commerce  with 
foreign  nations  and  among  the  several  States,  includes  naviga 
tion  upon  the  high  seas,  and  in  the  bays,  harbors,  lakes,  and 
navigable  waters  within  the  United  States,  and  that  any  tax  by 
a  State  in  any  way  affecting  the  right  of  navigation,  or  sub 
jecting  the  exercise  of  the  right  to  a  condition  is  contrary  to 
the  aforesaid  grant. 

"  9.  That  the  States  of  this  Union  may,  in  the  exercise  of 
their  police  powers,  pass  quarantine  and  health  laws,  interdict 
ing  vessels  coming  from  foreign  ports,  or  ports  within  the 
United  States,  from  landing  passengers  and  goods,  prescribe 
the  places  and  time  for  vessels  to  quarantine,  and  impose 
penalties  upon  persons  for  violating  the  same ;  and  that  such 
laws,  though  affecting  commerce  in  its  transit,  are  not  regula 
tions  of  commerce  prescribing  terms  upon  which  merchandise 
and  persons  shall  be  admitted  into  the  ports  of  the  United 
States,  but  precautionary  regulations  to  prevent  vessels  en 
gaged  in  commerce  from  introducing  disease  into  the  ports  to 
which  they  are  bound;  and  that  the  States  may,  in  the  exercise 
of  such  police  power,  without  any  violation  of  the  power  in 
congress  to  regulate  commerce,  exact  from  the  owner  or  con 
signee  of  a  quarantined  vessel,  and  from  the  passengers  on 
board  of  her,  such  fees  as  will  pay  to  the  State  the  cost  of  their 
detention  and  of  the  purification  of  the  vessel,  cargo,  and 
apparel  of  the  persons  on  board." 

After  this  decision,  the  New  York  lawyers  en 
deavored  to  find,  and  did  suggest,  what  was  cer 
tainly  a  very  ingenious  device  for  the  purpose  of 
evading  the  force  of  the  decision.  An  act  was 

o 

passed,  requiring  every  captain  to  report  to  the 
mayor  the  name,  last  residence  and  occupation  of 
every  alien  passenger.  It  directed  the  mayor  to 
require  the  owner  or  consignee  of  the  ship  to  give 
a  bond  with  sureties  in  a  penalty  of  $300 — to  in 
demnify  the  State  against  any  such  person  becoming 


State  Power  over  Foreign  Commerce    151 

a  public  charge.  From  this  onerous  requirement, 
the  owner  could  be  relieved  by  paying  a  dollar  and 
a  half  for  each  passenger,  within  twenty-four  hours 
after  he  landed. 

The  shipowners  submitted  to  this  system  for 
twenty  years.  They  then  decided  to  contest  it. 
In  1875,  in  tne  case  °f  Henderson  against  the 
Mayor  of  New  York,1  it  was  unanimously  held  that 
the  transportation  of  passengers  was  as  much  a  part 
of  commerce  as  that  of  goods  ;  that  a  tax  upon  pas 
sengers  was  a  tax  on  commerce,  and  that  the  Court 
would  look  through  the  device  by  which  the  city 
apparently  only  required  a  report  and  security 
against  pauperism.  "In  whatever  language,"  said 
Mr.  Justice  Miller,  "a  statute  may  be  framed,  its 
purpose  must  be  determined  by  its  natural  and  rea 
sonable  effect."  And  the  Court  concludes  (p. 
274)  : 

"  We  are  of  opinion  that  this  whole  subject  has  been  con 
fided  to  Congress  by  the  Constitution;  that  Congress  can  more 
appropriately  and  with  more  acceptance  exercise  it  than  any 
other  body  known  to  our  law,  state  or  national;  that  by  pro 
viding  a  system  of  laws  in  these  matters,  applicable  to  all  ports 
and  to  all  vessels,  a  serious  question,  which  has  long  been 
matter  of  contest  and  complaint,  may  be  effectually  and  satis 
factorily  settled." 

Congress  adopted  the  suggestion,  and  in  1882 
passed  an  act 2  to  regulate  immigration.  This 
levied  a  tax  of  fifty  cents  upon  each  alien  passen 
ger  who  should  enter  any  United  States  port  by 
steam  or  sail  vessel.  The  proceeds  of  this  tax 

1  92  United  States  Rep.,  259.  2  22  U.  S.  Stat.  at  Large,  214. 


152  Daniel  Webster 

constitute  an  immigrant  fund,  which  is  used  to  de 
fray  the  expense  of  regulating  immigration,  and  for 
the  care  of  immigrants  and  the  relief  of  such  as 
are  in  distress.  This  act  was  held  constitutional 
in  the  Head  money  cases,  decided  in  I884.1  Thus 
the  question  was  finally  set  at  rest.  Uniformity 
in  the  administration  of  immigration  throughout 
our  ocean  frontier  has  been  found  to  be  of  great 
public  advantage.  It  is  the  natural  development 
of  the  principle  of  national  control  over  national 
commerce,  for  which  Mr.  Webster  contended  in 
Gibbons  vs.  Ogden,  as  well  as  in  the  Passenger  Tax 
cases.  Without  it,  we  should  not  be  a  Nation. 
It  is  interesting  to  trace  the  gradual  extinction  of 
the  doubts  on  this  subject,  which  had  been  raised 
by  acute  and  vigorous  advocates  of  the  rights  of 
the  States.  Chief  Justice  Taney  had  maintained2 
that  passengers  were  not  imports,  that  the  word 
"imports"  in  the  Constitution,  must  be  given  a 
meaning,  restricted  to  its  common  use,  at  the  time 
the  Constitution  was  adopted,  and  that  therefore 
Congress  could  not,  and  the  several  States  could 
impose  a  tax  upon  passengers.  He  adds  : 

' '  And  if  it  is  to  be  hereafter  the  law  of  this  Court,  that  the 
power  to  regulate  commerce  has  abridged  the  taxing  power 
of  the  States  upon  the  vehicles  or  instruments  of  commerce,  I 
cannot  foresee  to  what  it  may  lead;  whether  the  same  prohibi 
tion,  upon  the  same  principle,  may  not  be  carried  out  in  re 
spect  to  ship  owners  and  merchandise  in  a  way  seriously  to 
impair  the  powers  of  taxation,  which  have  heretofore  been 
exercised  by  the  States." 

1  112  U.  S.,  580.  9  7  Howard,  477-482. 


State  Power  over  Foreign  Commerce    153 

But  the  vague  evils,  the  extent  of  which  the 
Chief  Justice  could  not  foresee,  have  proved  to  be 
imaginary.  In  one  of  the  later  cases,1  in  which 
another  attempt  of  the  State  of  New  York  to  levy 
a  tax  on  commerce  under  guise  of  a  harbor  regula 
tion  was  frustrated,  Mr.  Justice  Swayne  well  ex 
presses  the  result  of  our  national  experience : 

"  The  commerce  clauses  of  the  Constitution  had  their  origin 
in  a  wise  and  salutary  policy.  They  give  to  Congress  the  en 
tire  control  of  the  foreign  and  interstate  commerce  of  the 
country.  They  were  intended  to  secure  harmony  and  uni 
formity  in  the  regulations  by  which  they  should  be  governed. 
Wherever  such  commerce  goes,  the  power  of  the  nation  ac 
companies  it,  ready  and  competent,  as  far  as  possible,  to  pro 
mote  its  prosperity  and  redress  the  wrongs  and  evils  to  which 
it  may  be  subjected.  It  was  deemed  especially  important  that 
the  States  should  not  impose  tonnage  taxes.  Hence  the  pro 
hibition  in  the  Constitution,  without  the  assent  of  Congress 
previously  given.  The  confusion  and  mischiefs  that  would 
ensue  if  this  restriction  were  removed  are  too  obvious  to  re 
quire  comment.  The  lesson  upon  the  subject  taught  by  the 
law  before  us  is  an  impressive  one." 

1  Inman  S.  S.  Co.  vs.  Tinker,  94  U.  S.,  238,  245. 


CHAPTER  XVIII 

EXTENSIVE     RANGE     OF    WEBSTER'S     LEGAL     ACQUIRE 
MENTS VAN  RENSSELAER    TITLE VAN 

RENSSELAER    VS.    KEARNEY 

THE  last  case  argued  by  Mr.  Webster  in  the 
Supreme  Court  was  Van  Rensselaer  vs.  Kearney.1 
It  was  argued  by  him  February  n,  1851.  It  is 
noted  here  because  it  illustrates  what  has  been 
already  referred  to — the  extent  of  Webster's  legal 
acquirements,  and  the  thoroughness  with  which  he 
did  his  work. 

The  case  involved  the  title  to  the  great  Van 
Rensselaer  estate  in  New  York.  In  1782,  John 
Van  Rensselaer  made  a  will  by  which  he  entailed 
the  whole  manor,  comprising  34,000  acres,  to  the 
oldest  son  of  his  grandson,  and  his  male  descend 
ants,  or  failing  them,  to  the  male  descendants  of 
his  other  sons.  The  Legislature  of  New  York,  in 
1782,  and  again  in  1786,  enacted  statutes  by  which 
entailed  estates  were  converted  into  an  absolute 
fee.  This  grandson,  John  J.  Van  Rensselaer, 
claimed  that  this  law  gave  him  an  absolute  title, 
and  proceeded  to  make  sales  of  the  estate.  Sub 
sequently,  however,  it  was  held  that  he  and  his  pro- 

1 II  Howard,  297. 
154 


Extensive  Range  Legal  Acquirements    155 

fessional  advisers  were  mistaken  in  supposing  that 
the  statute  vested  the  absolute  title  in  him,  and 
that  he  had  only  a  life  estate.  His  oldest  son  died 
before  his  father,  leaving  no  children,  and  the 
second  son,  Jeremiah,  claimed  that  it  was  in  him 
that  the  absolute  title  vested,  and  brought  an 
action  of  ejectment  against  the  grantees  of  his 
father.  His  first  suit  in  the  Supreme  Court  of 
New  York  was  decided  against  him,  and  he  ac 
quired  citizenship  in  New  Jersey,  and  brought  an 
action  in  the  Circuit  Court  of  the  United  States, 
in  a  different  form,  for  the  purpose  of  raising  the 
question  of  title  before  the  United  States  Supreme 
Court.  That  Court  followed  the  New  York  de 
cisions  upon  the  title,  and  held  that  the  absolute 
title  vested  in  the  grandson  when  his  oldest  son 
died,  and  that  this  title  thereupon  passed  to  the 
previous  grantees,  and  that  the  other  heirs  of  the 
grandson  could  not  claim  it. 

The  late  John  Jay  was  in  this  case.  When  Mr. 
Webster  began  his  argument  and  proceeded  to 
state  the  differences  between  the  case  as  presented 
to  the  Supreme  Court,  and  the  former  case  in  New 
York,  Mr.  Jay  thought  the  statement  erroneous 
and  asked  Mr.  Wood,  the  senior  counsel  (who  was 
one  of  the  leaders  of  the  New  York  bar),  to  correct 
him.  Mr.  Wood  replied :  "I  do  not  know  any 
man  who  would  venture  to  interrupt  Mr.  Web 
ster."  Mr.  Jay  said,  "I  will,"  and  he  did.1  Webster 

1  The  author's  authority  for  this  statement  is  Mr.  Jay  himself.  He 
seemed  to  be  as  proud  of  this  success  of  his  youth  as  of  any  achievement  of 
his  long  and  useful  life. 

Mr.  Webster's  notes  of  his  argument  in  this  case  are  in  the  Library  of 


156  Daniel  Webster 

frowned  at  his  young  opponent,  but  the  latter  held 
to  his  point  and,  as  he  was  right,  carried  it,  to  the 
great  surprise  of  the  Court  and  bar. 

the  New  Hampshire  Historical  Society.  They  are  detailed  and  thorough, 
written  in  the  neat  and  compact  hand  which  characterizes  his  notes  and 
briefs,  and  on  the  square  letter  paper  with  which  practitioners  in  the  Su 
preme  Court  are  familiar. 


CHAPTER  XIX 

THE      CONSTITUTION     AND      SLAVERY SEVENTH       OF 

MARCH    SPEECH 

MR.  WEBSTER'S  position  on  the  seventh  of  March, 
1850,  was  unique.  To  no  man  in  America  did  the 
country  look  with  such  confidence.  The  story  of 
his  great  arguments,  which  has  just  been  rehearsed, 
was  fresh  in  every  breast.  The  Senate  Chamber 
was  thronged  to  hear  him.  But  his  audience  was 
in  every  one  of  the  thirty  States  then  composing 
the  Union.  The  difficulties  of  the  situation  seemed 
insurmountable,  and  it  was  generally  felt  that  he  was 
the  Lewis  and  Clark  who  could  find  a  practicable 
pass  through  these  Rocky  Mountains.  Clay,  the 
compromiser,  was  engaged  in  the  preparation  of 
compromise  measures.  But  men  looked  to  Web 
ster  to  convince  the  judgment  and  the  conscience 
of  the  country. 

In  the  nature  of  the  case,  it  was  impossible  that 
he  should  satisfy  every  one.  Gabriel  himself  could 
not  have  done  that. 

Any  one  who  reads  carefully  the  contemporary 
literature,  as,  for  example,  Emerson's  lecture  on 
the  Fugitive  Slave  Law,1  will  perceive  that  the  real 

1  Delivered  March  7,  1854. 
157 


158  Daniel  Webster 

difference  between  Webster  and  his  critics  was  this. 
They  believed  that  slavery,  everywhere  and  under 
all  circumstances,  was  wrong,  and  that  therefore 
any  stipulation  in  its  favor  in  the  Constitution  was 
void.  He  thought  it  an  evil,  he  opposed  its  exten 
sion,  he  hoped  for  its  termination,  but  he  did  not 
think  that  at  all  times  and  under  all  circumstances 
it  was  morally  wrong.  Therefore  he  judged  that 
it  was  right  to  recognize  the  existence  of  slavery, 
and  to  submit  to  the  agreement  which  bound  the 
federal  government  to  tolerate  that  existence  in 
the  Southern  States.  His  position  was  analogous 
to  that  of  James  Russell  Lowell  in  the  winter  of 
1876-77.  There  can  be  little  doubt  that  Lowell's 
conscience  revolted  against  the  proceedings  of  the 
Returning  Boards  in  Louisiana  and  Florida,  which 
suppressed  and  altered  returns  from  various  dis 
tricts,  and  thereby  converted  a  popular  majority  for 
Tilden  into  an  electoral  majority  for  Hayes.  The 
Electoral  Commission  held  that  it  had  no  power  to 
inquire  into  the  Democratic  allegations  of  fraud  in 
the  proceedings  of  these  Returning  Boards.  Under 
these  circumstances,  some  of  Mr.  Lowell's  friends 
urged  upon  him  that,  in  his  position  as  Elector 
from  the  State  of  Massachusetts,  it  was  his  duty  to 
redress  the  fraud  thus  committed,  and  to  deprive 
those  who  had  committed  it  of  the  fruit  of  their 
conduct,  by  voting  in  the  Electoral  College  for 
Tilden.  This  would  have  given  Tilden  a  majority 
in  that  College.  But  Lowell,  in  opposition  to  this 
solicitation,  declared  that  he  was  commissioned  by 
the  State  of  Massachusetts  to  vote  for  Hayes.  It 


The  Constitution  and  Slavery         159 

could  not  be  denied  that  he  had  constitutionally 
the  right  to  vote  differently.  But  he  did  not  feel 
at  liberty  to  disregard  the  mandate  which  unbroken 
custom  had  given  to  the  members  of  the  Electoral 
College.  In  short,  while  he  saw  the  wrong,  he  did 
not  feel  called  upon  to  redress  it,  although  he  had 
the  clear  constitutional  right  so  to  do. 

Mr.  Webster,  with  equal  clearness,  saw  the 
wrong  of  slavery.  But  his  case  was  stronger  than 
Lowell's,  for  as  Senator  from  the  State  of  Massa 
chusetts,  he  had  no  constitutional  right  to  interfere 
with  slavery  in  the  Southern  States,  and  he  felt  it 
his  duty  to  convince  his  countrymen,  if  possible, 
that  the  observance  of  the  obligations  which  they 
had  assumed  when  they  adopted  the  Federal  Con 
stitution  was  consistent  with  good  conscience.  But 
it  was  natural  that  those  who  did  not  agree  with 
him  in  this  should  condemn  his  course.  It  was  a 
distinct  disappointment  to  them.  And  it  is  not 
surprising  that  those  who  were  disappointed  should 
have  expressed  that  disappointment  in  bitter  words. 
Some  of  them,  like  Whittier  and  Lowell,  were  men 
of  extraordinary  literary  gifts,  and  embalmed  their 
indignant  thoughts  in  the  clear  amber  of  their 
style.  Then  came  the  war,  and  the  epoch  of  re 
construction,  warped  and  embittered  by  the  tragi 
cal  death  of  our  great  Captain,  just  as  his  ship  was 
entering  port  after  the  stormy  four  years  of  his 
first  Administration.  It  was  then  too  soon  to 
judge  fairly  of  Webster's  position  in  1850.  But 
the  experience  of  the  last  thirty  years  has  not  been 
in  vain.  We  have  learned  that  the  earnest  men 


160  Daniel  Webster 

were  mistaken  who  thought  the  solution  of  the 
negro  question  easy — who  declared,  as  the  author 
heard  Roswell  D.  Hitchcock  say — "Do  you  ask 
what  is  to  become  of  the  negroes  ?  I  answer — 
What  is  to  become  of  the  red-headed  men  ?  " 

Webster  vividly  described  the  situation  in  1850 
in  this  very  speech * : 

"It  is  not  to  be  denied  that  we  live  in  the  midst  of  strong 
agitations,  and  are  surrounded  by  very  considerable  dangers 
to  our  institutions  and  government.  The  imprisoned  winds 
are  let  loose.  The  East,  the  North,  and  the  stormy  South 
combine  to  throw  the  whole  sea  into  commotion,  to  toss  its 
billows  to  the  skies,  and  to  disclose  its  profoundest  depths." 

The  nature  of  this  commotion  can  best  be  appre 
ciated  by  a  brief  reference  to  the  character  of  the 
conflicting  elements. 

The  Northern  abolitionists  imagined  that  the 
Southern  negroes  had  reached  the  full  standard  of 
manhood,  and  were  capable  of  self-government.  To 
them  the  Southern  whites  were  cruel  oppressors. 
No  one  did  more  to  impress  these  ideas  upon  the 
last  generation  than  James  Russell  Lowell.  The 
indignation  which  others  vehemently  but  coarsely 
uttered,  he  expressed  with  the  skill  and  fire  of 
genius.  Uncle  Toms  Cabin,  too,  was  read  through 
out  the  world,  and  was  regarded  by  many  as  a  true 
picture  of  the  South,  as  a  whole. 

On  the  farther  side  of  Mason  and  Dixon's  line, 
the  Southern  people  smarted  under  and  resented 
these  attacks,  which  they  knew  to  be,  in  the  main, 
unjust.  They  were  well  aware  that,  while  there 

1  Webster's  Works,  vol.  v.,  p.  325. 


The  Constitution  and  Slavery         161 

were  many  individual  exceptions,  the  negroes  as  a 
race  were  backward  in  development,  childish  in 
taste  and  feeling,  incapable  of  the  proper  exercise 
of  the  duties  of  citizenship. 

In  the  light  of  our  experience  since  the  war,  we 
ought  to  revise  the  traditional  opinions  as  to  its 
causes.  The  great  discovery  of  Darwin — the  law 
of  evolution — was  not  understood  before  the  war. 
The  Northern  abolitionists  did  not  realize  that  the 
negroes  who  had  been  brought  from  Africa  had 
existed  in  their  native  country  in  a  state  of  the 
lowest  barbarism,  not  far  removed  from  the  ape, 
and  that  what  Wordsworth  calls  the  "discipline 
of  slavery  "  was  a  stage  in  the  evolution  of  the  race. 
"  Hateful  though  it  is  to  us,"  says  Herbert  Spen 
cer,  *  "  and  injurious  as  it  would  be  now,  slavery 
was  once  beneficial,  was  one  of  the  necessary 
phases  of  human  progress." 

On  the  other  hand,  the  Southern  people  did  not 
know,  or  failed  to  realize,  that  slavery  was  only  a 
transitory  stage,  and  that  it  was  the  part  of  wise 
statesmanship  to  train  these  blacks  for  something 
better  than  slavery.  So  they  did  their  utmost  to 
keep  their  slaves  just  as  they  were,  and  discouraged 
or  prohibited  education  of  every  sort,  except  that 
actually  necessary  for  the  daily  work  of  the  town 
or  of  the  plantation.  And  with  unspeakable  folly, 
under  the  leadership  of  Calhoun,  they  claimed,  as 
has  been  shown,2  that  the  Constitution  itself  carried 


1  Herbert  Spencer,  Illustrations  of  Universal  Progress,  p.  ^/|  (Ed.  D. 
Appleton  &  Co.,  1890).     See  also  Shaler,  The  Individual,  p.  135. 
1  Ante,  pp.  74,  75. 


1 62  Daniel  Webster 

slavery  into  the  Territories,  and  they  were  constantly 
aiming  to  extend  its  area,  not  merely  by  this  pro 
cess  of  colonization,  but  by  the  acquisition  of  new 
territory,  adapted  for  the  cultivation  of  cotton  by 
slave  labor.  To  this  end  Texas  had  been  annexed. 
This  led  to  the  war  with  Mexico.  That  resulted 
in  the  annexation  of  California  and  New  Mexico. 
And  now  California  stood  at  the  doors  of  Congress, 
asking  for  admission  as  a  State  with  a  constitution 
that  prohibited  slavery.  New  Mexico  needed  a 
territorial  government.  Should  Congress  prohibit 
slavery  there  ?  And  the  District  of  Columbia,  over 
which  Congress  had  exclusive  jurisdiction — Should 
slavery  be  prohibited  there?  Should  the  sale  of 
slaves  be  longer  tolerated  at  the  national  Capital  ? 
And  what  was  to  be  done  with  fugitives  who  es 
caped  from  slavery  to  the  North  ?  The  Constitu 
tion  contained  an  agreement  that  they  should  be 
returned.  For  this  reason  Garrison  called  it  a 
"covenant  with  hell."  And  when  United  States 
soldiers  in  Boston  were  ordered  out  to  protect  the 
United  States  marshal  in  executing  the  process  of 
the  federal  court  for  the  return  of  a  fugitive,  the 
flag  under  which  they  marched  was  greeted  with 
the  following  verse,  which  seems  shocking  to  us 
to-day,  after  that  flag  has  been  consecrated  by  un 
told  blood  and  suffering,  but  which  then  expressed 
the  sentiments  of  thousands  of  sincere  lovers  of 

liberty. 

"  Tear  down  the  flaunting  lie, 
Half-mast  the  starry  flag, 
Defile  not  sea  and  sky 

With  hate's  polluted  rag." 


The  Constitution  and  Slavery         163 

So  it  came  to  pass  that  both  abolitionists  and  pro- 
slavery  men  were  for  disunion. 

Mr.  Webster  saw  clearly  to  what  this  conflict 
would  lead,  unless  wiser  counsels  could  prevail. 
An  incident  which  the  author  is  enabled  to  relate 
on  the  word  of  an  eye-witness  tells  the  story  faith 
fully.  One  day  at  Marshfield,  in  1849,  he  was 
oppressed  by  sadness.  Usually  cheerful  and  full 
of  varied  anecdote,  he  was  silent.  After  dinner  he 
stood  in  front  of  the  fire  and  said  in  his  deep  tones  : 
"If  this  slavery  agitation  goes  on,  we  shall  have 
war  between  the  North  and  South.  And  who  is 
ready  for  that  ? " 

To  prevent  that,  he  delivered  this  great  address, 
which  is  not  the  least  of  his  titles  to  the  gratitude 
of  his  countrymen.  If  the  War  of  Secession  had 
come  in  1850,  the  South  would  probably  have  suc 
ceeded.  The  increase  of  the  Northern  States  in 
population  during  the  succeeding  decade  was  far 
greater  than  that  of  the  Southern  States.  But 
more  important  than  this  was  the  rapid  develop 
ment  of  railroads  and  telegraphs,  and  of  innu 
merable  manufacturing  industries.  The  mines  of 
California  enriched  us  as  well  as  those  of  Pennsyl 
vania  and  Michigan.  Together  they  upheld  the 
war  by  "  its  two  main  nerves,  iron  and  gold." 

If  secession  therefore  was  to  come,  any  thing  that 
should  postpone  its  advent  was  of  vital  importance 
to  the  Union.  This  speech  of  Webster's  was  the 
most  important  factor  in  producing  that  result. 
And  had  Douglas  and  his  supporters  in  the 
North,  and  Davis  and  his  associates  in  the  South, 


164  Daniel  Webster 

acquiesced  in  the  compromise  which  followed,  we 
might  have  been  spared  the  blood  and  suffering  of 
the  Civil  War,  and  emancipated  our  slaves  peace 
ably  and  gradually,  as  the  British  did  in  1833,  with 
compensation  to  the  Southern  States.  Let  no  man, 
therefore,  now  attribute  to  our  great  statesman 
ignoble  motives  for  this,  his  final  great  effort  "  for 
the  Constitution  and  the  Union." 

Webster  is  now  justly  entitled  to  full  belief  when 
he  himself  declared  in  this  memorable  speech  his 
purposes  and  motives.  He  said  : 

"  I  wish  to  speak  to-day,  not  as  a  Massachusetts  man,  nor 
as  a  Northern  man,  but  as  an  American,  and  a  member  of  the 
Senate  of  the  United  States.1  ...  I  have  a  part  to  act, 
not  for  my  own  security  or  safety,  for  I  am  looking  out  for  no 
fragment  upon  which  to  float  away  from  the  wreck,  if  wreck 
there  must  be,  but  for  the  good  of  the  whole,  and  the  preserva 
tion  of  all;  and  there  is  that  which  will  keep  me  to  my  duty 
during  this  struggle,  whether  the  sun  and  stars  shall  appear, 
or  shall  not  appear  for  many  days.  I  speak  to-day  for  the 
preservation  of  the  Union.  '  Hear  me  for  my  cause.'  I  speak 
to-day,  out  of  a  solicitous  and  anxious  heart,  for  the  restora 
tion  to  the  country  of  that  quiet  and  that  harmony  which  make 
the  blessings  of  this  Union  so  rich  and  so  dear  to  us  all. 
These  are  the  topics  that  I  propose  to  myself  to  discuss;  these 
are  the  motives,  and  the  sole  motives,  that  influence  me  in  the 
wish  to  communicate  my  opinions  to  the  Senate  and  the  coun 
try;  and  if  I  can  do  anything,  however  little,  for  the  promotion 
of  these  ends,  I  shall  have  accomplished  all  that  I  expect."  * 

It  must  be  noted  here  that  only  three  days  before 
Webster  spoke,  Calhoun's  last  important  speech 

1  It  must  be  remembered  that  there  were  then  in  the  Senate  the  first  law 
yers  and  statesmen  in  the  United  States. 

9  Elaine  frankly  concedes  Webster's  sincerity  and  patriotism  in  this  speech. 
Twenty  Years  in  Congress,  vol.  i.,  p.  94. 


The  Constitution  and  Slavery         165 

was  heard  in  the  Senate.  He  was  too  feeble  to 
deliver  it,  and  it  was  read  by  Mr.  Mason  of  Vir 
ginia.1  A  brief  extract  from  this  will  illustrate 
the  position  of  Calhoun  and  his  associates  at  this 
time  : 

'  That  the  Government  claims,  and  practically  maintains, 
the  right  to  decide  in  the  last  resort,  as  to  the  extent  of  its 
powers  will  hardly  be  denied  by  any  one  conversant  with  the 
political  history  of  the  country.  That  it  also  claims  the  right 
to  resort  to  force,  to  maintain  whatever  power  she  claims, 
against  all  opposition,  is  equally  certain.  Indeed  it  is  appar 
ent,  from  what  we  daily  hear,  that  this  has  become  the  prevail 
ing  and  fixed  opinion  of  a  great  majority  of  the  community."  a 

Calhoun  then  went  on  to  show  how  the  great 
religious  bodies  had  been  broken  asunder  by  the 
slavery  discussion. 

He  attacked  the  doctrine  of  the  right  of  a  Terri 
tory  to  legislate  on  the  subject  as  worse  than  the 
Wilmot  proviso.  It  seems  that  Senator  Houston 
of  Texas  had  favored  this  local  legislation. 

He  puts  the  case  thus  to  the  Senate  : 

"It  is  time,  Senators,  that  there  should  be  an  open  and  manly 
avowal  on  all  sides  as  to  what  is  intended  to  be  done.  If  the 
question  is  not  now  settled,  it  is  uncertain  whether  it  ever  can 
hereafter  be;  and  we,  as  the  representatives  of  the  States  of  this 
Union,  regarded  as  Governments,  should  come  to  a  distinct 
understanding  as  to  our  respective  views,  in  order  to  ascertain 
whether  the  great  questions  at  issue  can  be  settled  or  not.  If 
you,  who  represent  the  stronger  portion,  cannot  agree  to  settle 
them  on  the  broad  principle  of  justice  and  duty,  say  so,  and 

*  Calhoun  died  in  Washington  on  the  3ist  of  March,  1850. 
9  Page  6  of  a  pamphlet  copy  of  this  speech,  among  the  Webster  papers  in 
the  Library  of  the  N.  H.  Historical  Society. 


1 66  Daniel  Webster 

let  the  States  we  both  represent,  agree  to  separate  and  part  in 
peace.  If  you  are  unwilling  we  should  part  in  peace,  tell  us 
so,  and  we  shall  know  what  to  do,  when  you  reduce  the  ques 
tion  to  submission  or  resistance."  l 

The  principal  propositions  which  Webster  main 
tained  in  his  reply  to  this  speech  of  Calhoun's  were 
these  : 

1.  That  at  the  time  the  Constitution  was  adopted, 
slavery  existed  in  the  United  States,  but  was  gen 
erally  looked  upon  as  an  evil  which  would  gradually 
pass  away. 

2.  That  public  sentiment  in  the  South  on  this 
subject  had  changed,  and  that  the  change  "  was 
owing  to  the  rapid  growth  and  sudden  extension  of 
the  COTTON  plantations  of  the  South.     So  far  as 
any  motive  consistent  with  honor,  justice  and  gen 
eral  judgment  could  act,  it  was  the  COTTON  interest 
that  gave  a  new  desire  to  promote  slavery,  to  spread 
it,  and  to  use  its  labor." 

3.  That  the  Constitution  found  slavery  "  in  the 
Union  ;  it  recognized  it,  and  gave  it  solemn  guar 
anties.     To  the  full  extent  of  these  guaranties  we 
are   all    bound   in    honor,   in   justice,   and  by   the 
Constitution."  3 

4.  "  That  there  is  not  at  this  moment  within  the 
United  States,  or  any  territory  of  the  United  States, 
a  single  foot  of  land,  the  character  of  which,  in  re- 

1  Page  16  of  a  pamphlet  copy  of  this  speech,  among  the  Webster  papers  in 
the  Library  of  the  N.  H.  Historical  Society. 

8  Webster's  Works,  vol.  v.,  p.  338.  The  emphasis  on  COTTON  is  given  as 
it  is  in  the  published  speech. 

3  Ibid.,  vol.  v.,  p.  347.  See  also  his  argument  in  Passenger-Tax  cases, 
Writings  and  Speeches,  vol.  xv.,  p.  404. 


The  Constitution  and  Slavery         167 

gard  to  its  being  free  territory  or  slave  territory,  is 
not  fixed  by  some  law,  beyond  the  power  of  the 
action  of  the  Government." 1  As  to  Texas  he 
showed  that,  by  the  compact  for  its  admission,  it 
was  entitled  to  be  divided  into  four  States,  every 
part  of  which  lying  south  of  "thirty-six  degrees 
thirty  minutes  north  latitude,  commonly  known  as 
the  Missouri  Compromise  line,  shall  be  admitted 
into  the  Union  with  or  without  slavery,  as  the  peo 
ple  of  each  State  asking  admission  may  desire." 
North  of  that  line,  in  any  State  formed  out  of 
Texas,  slavery  was  to  be  prohibited,  as  it  had  been 
by  the  compromise  of  1820,  in  every  State  to  be 
admitted  north  of  that  line.  As  to  New  Mexico 
(of  which  the  State  now  called  Utah  was  then  a 
part),  the  mountainous  character  of  the  country 
was  such  that  slavery  was  impossible.  "  Such  a 
prohibition  would  be  idle,  as  it  respects  any  effect 
it  would  have  upon  the  territory,  and  I  would  not 
take  pains  uselessly  to  reaffirm  an  ordinance  of 
nature,  nor  to  re-enact  the  will  of  God."5 

5.  That  he  himself  had  always  opposed  the  an 
nexation    of   Texas,   because    inevitably    it   would 
lead  to  the  extension  of  the  area  of  slavery,  but 
that  it  had  been  carried  by  the  votes  of  Northern 
representatives. 

6.  That  he  himself  had  always,  and  still  opposed 
the  extension  of  the  area  of  slavery. 

7.  That  the  Supreme  Court  had  decided  3  "  that 
the  power  to  cause  fugitives  from  service  to  be 

"Webster's  Works,  vol.  v.,  p.  340.  *  Ibid.,  vol.  v.,  p.  352. 

3  Prigg  vs.  Pennsylvania,  16  Peters,  610. 


1 68  Daniel  Webster 

delivered  up,  was  a  power  to  be  exercised  under  the 
authority  of  this  [the  national]  government,"  and 
that  the  oath  to  support  the  Constitution  bound  all 
who  took  it,  at  least  not  "  to  endeavor  to  get  round 
this  Constitution,  or  to  embarrass  the  free  exercise 
of  the  rights  secured  by  the  Constitution  to  the 
persons  whose  slaves  escape  from  them." 

8.  And  then,  to  conclude  in  his  own  words 1  : 

"Secession!  Peaceable  secession !  Sir,  your  eyes  and  mine 
are  never  destined  to  see  that  miracle.  The  dismemberment 
of  this  vast  country  without  convulsion !  The  breaking  up  of 
the  fountains  of  the  great  deep  without  ruffling  the  surface! 
Who  is  so  foolish,  I  beg  everybody's  pardon,  as  to  expect  to 
see  any  such  thing  ?  Sir,  he  who  sees  these  States,  now  re 
volving  in  harmony  around  a  common  centre,  and  expects  to 
see  them  quit  their  places  and  fly  off  without  convulsion,  may 
look  the  next  hour  to  see  the  heavenly  bodies  rush  from  their 
spheres,  and  jostle  against  each  other  in  the  realms  of  space, 
without  causing  the  wreck  of  the  universe.  There  can  be  no 
such  thing  as  a  peaceable  secession.  Peaceable  secession  is 
an  utter  impossibility.  Is  the  great  Constitution  under  which 
we  live,  covering  this  whole  country,  is  it  to  be  thawed  and 
melted  away  by  secession,  as  the  snows  on  the  mountain  melt 
under  the  influence  of  a  vernal  sun,  disappear  almost  unob 
served,  and  run  off  ?  No  sir!  No  sir!  I  will  not  state  what 
might  produce  the  disruption  of  the  Union,  but  Sir,  I  see  as 
plainly  as  I  see  the  sun  in  heaven,  what  that  disruption  itself 
must  produce.  I  see  that  it  must  produce  war,  and  such  a 
war  as  I  will  not  describe,  in  its  twofold  character"  * 

There  were  many  arguments  in  the  speech 
adapted  to  produce  a  more  friendly  understand- 

1  Webster's  Works,  vol.  v.,  p.  361. 

9  A  remarkable  statement  of  the  duty  and  right  of  the  national  government 
to  put  down  secession  by  force  is  in  a  circular  submitted  by  him  to  the 
Cabinet  when  he  was  Secretary  of  State,  October,  1850  ( Writings  and 
Speeches,  vol.  xv.,  p.  232). 


The  Constitution  and  Slavery        169 

ing  between  the  North  and  the  South.  But  the 
eight  propositions  I  have  thus  stated  were  the  prin 
cipal  topics.  It  is  difficult  now  to  realize  the  offence 
that  their  statement  gave  to  many  good  people  at 
the  North.  Apparently  some  had  expected  that 
Mr.  Webster  would  head  a  crusade  against  the 
South.  For  a  time  the  doors  of  Faneuil  Hall 
were  closed  against  him  by  the  Boston  Common 
Council,  though  they  afterwards  swung  wide  open 
by  the  unanimous  invitation  of  the  Mayor  and 
Council  to  welcome  the  first  citizen  of  Massachu 
setts.1  On  the  whole,  the  great  majority  of  the 
Northern  and  Southern  people  approved  his  course.2 
The  speech  was  circulated  by  the  hundred  thou 
sand.  It  was  entitled,  a  speech  "  for  the  Constitu 
tion  and  the  Union."  "  With  the  highest  respect 
and  the  deepest  sense  of  obligation,  I  dedicate  this 
speech,"  he  said,  "  to  the  People  of  Massachusetts." 
The  motto  he  prefixed  to  the  pamphlet  edition 
expresses  tersely  the  spirit  of  the  whole.  Its  apt 
ness  illustrates  his  familiarity  with  the  Latin  histo 
rians,  whom  he  discussed  sympathetically  in  his 
address  before  the  New  York  Historical  Society 
on  the  23d  of  February,  i852.3 

"I  know  that  there  are  things  more  pleasing  to  be  spoken, 
but  I  speak  that  which  is  true  rather  than  that  which  is  pleas 
ing;  and  even  if  my  judgment  did  not  warn  me  to  do  this, 
necessity  compels  me  to  do  it.  I  purpose,  indeed,  to  please 

1  Webster's  Writings  and  Speeches,  vol.  xiii.,  p.  510. 

*  On  the  3Oth  of  April,  1850,  a  resolution  condemning  his  course  was 
rejected  in  the  Massachusetts  Legislature  by  a  vote  of  77  yeas  to  139  nays  ; 
see  Burgess,  The  Middle  Period,  p.  359. 

8  Webster's  Writings  and  Speeches,  vol.  xiii. ,  p.  463. 


1 70  Daniel  Webster 

you,  but  I  purpose  much  more  that  you  should  be  saved,  how 
ever  you  may  in  the  future  regard  me."  ' 

Great  public  meetings  were  held  in  various  parts 
of  the  Union  to  express  approbation  of  the  positions 
taken  in  this  speech.  Some  of  the  letters  of  grati 
tude  which  Webster  received  are  in  print.  But 
there  are  many  more  in  the  collections  of  Webster 
manuscripts.  Perhaps  none  pleased  him  better 
than  the  following  letter  from  Francis  Lieber,  who 
was  then  Professor  in  the  University  at  Columbia, 
South  Carolina,  and  who  came  North  before  1861 
and  rendered  signal  service  in  that  war  which  may 
justly  be  named — as  was  the  seventh  of  March 
speech, — "for  the  Constitution  and  the  Union." 

COLUMBIA  S.  C.  6  June  1850 
"  MY  DEAR  SIR 

"  I  received  last  night  the  three  pamphlets  which  you  have 
had  the  kindness  of  sending  to  me,  and  for  which  I  beg  you  to 
accept  my  thanks.  I  had  read  and  read  with  deep  interest, 
your  Letter  before,  but  I  am  glad  I  now  possess  that  masculine 
and  substantial  paper  in  pamphlet  form,  and  feel  proud  to 
have  a  copy  of  it  with  your  name  inscribed.  Sir,  I  trust  in 
God,  that  all  these  papers  may  not  receive  an  additional  and 
most  melancholy  interest  by  being  looked  upon,  a  few  years 
hence,  as  belonging  to  the  closed  period  of  the  once  existing 
Union.  I  confess,  I  do  not  believe  in  an  immediate  dissolu- 

1  This  quotation,  which  Webster  prefixed  to  the  widely  circulated  pamphlet 
edition  of  this  speech,  is  from  the  third  book  of  Livy,  Cap.  68.  It  is  part 
of  a  speech  of  the  Consul  Titus  Quinctius  Capitolinus,  to  the  Roman  people, 
rebuking  them  for  their  dissensions  while  the  yEqui  and  Volsci  were  rav 
aging  the  Campagna,  up  to  the  very  gates  of  Rome  : 

"  His  ego  gratiora  dictu  alia  esse  scio ;  sed  me  VERA  PRO  GRATIS  loqui,  etsi 
meum  ingenium  non  moneret,  necessitas  cogit.  Vellem,  equidem,  vobis  pla- 
cere,  sed  multo  malo  vos  salvos  esse,  qualicumque  erga  me  animo  futuri 
estis." 


The  Constitution  and  Slavery         171 

tion  of  the  Union — though  everything  is  possible  with  reckless 
fanatics,  and  the  power  of  mischief  is  incalculable  in  every 
being,  even  in  the  mouse  which  perforates  a  dyke — but  this 
shaking  and  rude  handling — this,  tabefacere,  may  make  our 
Union  so  rickety  a  thing  that  we  may  suffer  nearly  all  the 
misery  and  disgrace  under  which  Germany  has  staggered  for 
centuries  in  consequence  of  her  wretched  federal  constitution 
and  of  her  '  particularism,'  as  the  body  of  those  tendencies  is 
there  called,  which  tears  that  unhappy  country — destined  for 
great  things  but  cheated  out  of  her  history.  I  find  that  I  feel 
far  deeper  upon  this  subject  of  the  Union  than  very  many  of 
the  native  citizens,  perhaps  because  I  am  not  a  native  Ameri 
can,  and  therefore  naturally  and  necessarily  a  Pan-American, 
and  because  I  am  a  native  German,  who  knows  by  heart  the 
commentary  which  his  country  has  furnished  and  is  furnish 
ing  for  the  text  of  querulous,  angry,  selfseeking,  unpatriotic 
confederacies,  and  who  finds  in  the  history  of  his  native  coun 
try  the  key  clearly  and  plainly  to  decipher  every  line  of  Grecian 
decay.  While  I  am  writing  these  sad  lines  to  you,  they  may 
be  engaged  at  Nashville  in  a  '  torch- dance  '  which — God  avert 
it — may  end  as  that  which  concluded  with  the  end  of  Persepolis 
and  the  glory  of  Alexander — with  a  conflagration. 

"  But  all  this  is  very  sad;  for  as  the  weeping  Persian  said, 
'  the  saddest  of  all  things  is  to  see  the  ruin  of  your  country  and 
to  see  how  it  ought  to  be  averted,  but  to  have  no  power.' 

"  I  am  with  the  highest  regard 

"  my  dear  Sir 

"  Your  very  obdt 

"  FRANCIS  LIEBER, 

"Pan- American  "  1 

Just  after  the  receipt  of  this  letter,  on  the  seven 
teenth  of  June  (which  we  may  remember  is  Bunker 
Hill  Day),  in  the  debate  on  the  admission  of  Cali 
fornia,  Mr.  Webster  declared  that  he  had,  in 
deference  to  the  critics  who  had  assailed  him,  re- 

1  The  original  of  this  letter  is  in  the  Congressional  Library. 


i?2  Daniel  Webster 

examined  his  opinions,  and  rejudged  his  own  judg 
ments,  but  that  he  could  not  part  from  his  own 
settled  opinions,  and  must  "  leave  consequences  to 
themselves."  He  concluded  his  five  minutes' 
speech  with  the  following  patriotic  words  : 

"  Sir,  My  object  is  peace.  My  object  is  reconciliation.  My 
purpose  is  not  to  make  up  a  case  for  the  North  or  to  make  up 
a  case  for  the  South.  My  object  is  not  to  continue  useless  and 
irritating  controversies,  I  am  against  agitators  North  and 
South,  and  against  all  narrow  and  local  contests.  I  am  an 
American  and  I  know  no  locality  in  America;  that  is  my 
country.  My  heart,  my  sentiments,  my  judgment,  demand  of 
me  that  I  shall  pursue  such  a  course  as  shall  promote  the  good 
and  the  harmony  and  the  Union  of  the  whole  Country — This 
I  shall  do,  God  willing,  to  the  end  of  the  chapter."  * 

The  legislation  which  was  adopted  in  1850  was 
on  the  lines  of  the  Seventh  of  March  speech  :  Cali 
fornia  was  admitted  as  a  free  State.  And  here  we 
must  pause  to  note  that  this  for  the  first  time  gave 
the  free  States  a  majority  in  the  Senate.  It  was 
this  circumstance  that  had  alarmed  Calhoun.  For 
thirty  years  the  number  of  Senators  from  the  slave 
States  had  equalled  that  from  the  free  States. 
Massachusetts  was  divided  in  1820,  and  Maine  ad 
mitted  as  a  separate  State,  in  order  to  counter 
balance  the  admission  of  Missouri  as  a  slave  State. 

To  New  Mexico  and  Utah  was  given  a  terri 
torial  government.  Its  organic  law  contained  no 
prohibition  of  slavery. 

A  fugitive  slave  law  was  passed.  Webster  in 
troduced  and  endeavored  in  vain  to  secure  the 

'Webster's  Works,  vol.  v.,  p.  385. 


The  Constitution  and  Slavery         173 

passage  of  an  act  giving  to  the  alleged  fugitive 
the  right  of  trial  by  jury.1  This,  however,  did 
not  pass. 

The  traffic  in  slaves  in  the  District  of  Columbia 
was  prohibited. 

In  addition  to  the  measures  thus  briefly  stated, 
the  compromise  included  the  settlement  of  the  dis 
pute  between  the  United  States  and  Texas  as  to 
the  boundaries  of  that  State.  Texas  was  paid  ten 
million  dollars,  and  she  ceded  to  the  United  States 
the  disputed  territory — now  a  part  of  Wyoming, 
Colorado,  Kansas,  Oklahoma  and  New  Mexico. 
The  country  generally  acquiesced  in  this  Com 
promise  of  1850.  When,  in  1852,  General  Scott 
was  nominated  for  the  Presidency  by  the  dissatisfied 
section  of  the  Whig  party,  he  carried  but  four 
States,  Vermont,  Massachusetts,  Kentucky,  and 
Tennessee.  Every  other  of  the  thirty-one  States 
voted  for  Franklin  Pierce.  He  had  been  brought 
forward  as  "  a  dark  horse,"  to  use  a  modern  phrase, 
because  he  was  known  to  be  a  colorless  man  against 
whom  there  was  no  prejudice.  He  stood  on  a 
platform  pledged  to  the  approval  and  maintenance 
of  the  Compromise  of  1850.  The  desire  for  peace 
was  almost  universal,  and  the  peace  candidate  was 
triumphantly  elected. 

In  an  evil  hour,  Douglas  revived  the  agitation  in 
1854.  A  fundamental  element  in  the  Compromise 
of  1850  was  that  there  should  be  no  further  exten 
sion  of  the  area  of  slavery.  When  Douglas  pro 
posed  that  the  voters  of  Kansas  and  Nebraska 

1  Webster's  Works,  vol.  v.,  p.  373. 


i74  Daniel  Webster 

should  decide  this  question  for  themselves,  and  in 
troduced  a  bill  which  repealed  the  prohibition  of 
slavery  contained  in  the  Missouri  Compromise  of 
1820,  it  became  plain  that  this  essential  considera 
tion  for  the  Northern  concessions  was  to  be  repu 
diated.  The  fountains  of  the  great  deep  were 
broken  up.  War  came,  and  that  war  gave  us  ab 
solute  emancipation. 

In  that  war  our  great  leader  was  Abraham  Lin 
coln.  He  in  his  time  received  as  much  abuse  from 
extreme  men  on  both  sides  as  did  Mr.  Webster. 
But  his  assassination  made  him  a  martyr.  His 
tory  has  told  the  truth  of  him.  And  when  a  curi 
ous  poll  was  made  of  one  hundred  prominent 
Americans  to  determine  the  names  that  should  be 
inscribed  on  the  Hall  of  Fame  of  the  New  York 
University,  the  three  names  that  obtained  their 
unanimous  verdict  were  Washington,  Webster  and 
Lincoln.  Let  us  therefore  compare  the  positions 
taken  in  the  seventh  of  March  speech,  with  Mr. 
Lincoln's  first  inaugural.1  In  this  the  President 
distinctly  declares  in  favor  of  the  maintenance  in 
violate  of  "the  right  of  each  State  to  order  and 
control  its  own  domestic  institutions  according  to 
its  own  judgment  exclusively."  He  declares  that 
the  Constitution  requires  "  the  reclaiming  of  what 
we  call  fugitive  slaves  "  and  that  an  oath  to  support 
the  Constitution  is  an  oath  to  give  support  "  to  this 
provision  as  much  as  any  other." 

When  Mr.  Lincoln  on  the  6th  of  March,  1862, 
sent  to  Congress  his  message  recommending  Con- 

1  Lincoln's  Works,  vol.  ii.,  pp.  1-7. 


The  Constitution  and  Slavery         175 

gress  to  provide  for  pecuniary  aid  to  any  State 
which  should  abolish  slavery,1  he  advocated  the 
true  policy,  which  it  would  have  been  wise  for  both 
North  and  South  to  have  adopted.  In  his  message 
of  December  ist,  he  renews  this  recommendation,2 
describing  it  as  "  compensated  emancipation." 

And  as  late  as  the  5th  of  February,  1865,  Lincoln 
presented  to  his  Cabinet  a  message  to  Congress 
offering  four  hundred  million  dollars  to  the  fifteen 
slave  States  (as  they  were  in  1860),  to  be  distributed 
pro  rata  on  their  respective  slave  populations,  as 
shown  by  the  Census  of  1860,  on  condition  that 
"  all  resistance  to  the  National  authority  shall  be 
abandoned  and  cease  on  or  before  the  ist  of  April 
next."3 

He  recommended  this  plan,  as  he  had  his  prior 
plan,4  by  calling  attention  to  the  fact  that  its  cost 
would  be  much  less  than  the  cost  of  the  war.  It 
seems  strange  that  this  proposition  of  Mr.  Lincoln's, 
so  fair,  and  so  frequently  renewed,  should  not  have 
been  accepted  by  a  single  slave  State.  It  seems 
strange  that  such  a  solution  does  not  appear  to 
have  occurred  to  any  of  the  great  men,  who  in  1850 
were  endeavoring  to  adjust  amicably  the  differences 
between  the  North  and  the  South.  Colonization 
in  Africa  was  proposed.  Liberia  was  founded  as  a 
nucleus  for  this  movement.  In  the  speech  we  are 
now  considering,  Webster  declared  that  if  the  South 
should  propose  "  a  scheme  to  be  carried  on  by  this 
Government,  upon  a  large  scale,  for  the  transporta- 

1  Lincoln's  Works,  vol.  ii.,  p.  129.  *  Ibid.,  p.  268. 

1  Ibid.,  p.  635.  *  Ibid.,  p.  210. 


i;6  Daniel  Webster 

tion  of  free  colored  people  to  any  colony,  or  any 
place  in  the  world,"  he  would  favor  the  use  for  this 
purpose  of  a  sum  equal  to  the  amount  already  re 
ceived  by  the  United  States  from  the  proceeds  of 
lands  ceded  by  Virginia,  amounting  then  to  eighty 
million  dollars,  and  likely  to  reach  the  sum  of  two 
hundred  millions.1  But  the  South  needed  and  still 
needs  the  colored  people.  Their  development  as 
a  race  has  progressed  and  will  progress  better  here 
than  in  Africa.  They  were  fated  to  be  free  here  in 
America.  And,  as  the  South  refused  voluntary 
emancipation,  it  "came  with  fire  and  sword.  Never 
theless,  it  did  come.  The  difficulties  that  the  more 
intelligent  Southerners  foresaw,  and  which  we  must 
now  admit  palliated  their  refusal,  are  now  upon  us. 
They  can  only  be  overcome  by  the  exercise  of  the 
same  spirit  of  moderation,  of  sympathy,  of  mutual 
consideration,  which  characterizes  the  seventh  of 
March  speech,  and  which  always  has  been  the  most 
odious  spirit  to  zealots  on  both  sides.2 

'Webster's  Works,  vol.  v. ,  p.  364. 

2  It  is  a  notable  fact  that  in  the  winter  of  1 860-61,  "  with  a  Republican 
majority  in  both  branches,  Acts  organizing  the  Territories  of  Colorado, 
Dakota  and  Nevada  were  passed  without  containing  a  word  of  prohibition 
on  the  subject  of  slavery  .  .  .  the  Republican  party  took  precisely  the 
same  ground  held  by  Mr.  Webster  in  1850,  and  acted  from  precisely  the 
same  motives  that  inspired  the  7th  of  March  speech." — Elaine,  Twenty 
Years  in  Congress,  vol.  i.,  pp.  269—271. 


CHAPTER  XX 

CONCLUSION 

\THE  principles  which  in  the  leading  cases,  sum 
marized  in  the  foregoing  chapters,  Webster  suc 
cessfully  maintained  against  the  adverse  decisions 
of  the  courts  below,  underlie  our  whole  American 
system.')  Mr.  Everett  tells  us  that  what  gave  to 
Lafayette  his  spotless  fame  was  "the  living  love  of 
liberty  protected  by  law."  QJ/hat  has  given  to  this 
country  its  greatness  is  its  well-ordered  freedom, 
protected  and  secured  by  the  Union  ;  liberty  secure, 
union  equals  No  individual  or  citizen  of  one  State 
may  have  privileges  secured  to  him  by  law  superior 
to  the  privileges  of  others.  On  the  other  hand, 
every  citizen  is  protected  by  law  in  the  acquisition 
of  property  and  in  the  enjoyment  of  his  personal 
rights.  So  long  as  American  courts  respect  the 
principles  thus  established,  and  America  combines 
public  freedom  with  individual  security,  so  long 
shall  a  grateful  people  cherish  the  memory  of  the 
Expounder  of  the  Constitution,  the  farmer  boy  of 
Salisbury,  the  eloquent,  farseeing  lawgiver  and 
lawyer,  Daniel  Webster. 

He  was  the  one  man  in  American  history  to 
whom  during  his  lifetime  the  epithet  of  godlike 
was  applied.  It  did  not,  in  his  case,  arouse  any 

12 

177 


i;8  Daniel  Webster 

feeling  of  surprise.     His  character,  his  features  and 
his  form  alike  justified  its  application. 

Whittier  aptly  describes  his  personal  appearance  : 

"  New  England's  stateliest  type  of  man, 
In  port  and  speech  Olympian: 
Whom  the  rich  heavens  did  so  endow 
With  eyes  of  power  and  Jove's  own  brow, 
Whom  no  one  met,  at  first,  but  took 
A  second  awed  and  wondering  look!  " 

Ball's  statue  in  the  New  York  Central  Park  gives 
us  Webster's  shape  and  figure.  But,  unfortunately, 
the  artist  had  not  the  genius  of  St.  Gaudens,  whose 
Lincoln  and  Farragut  seem  on  the  point  of  speak 
ing.  It  needs  imagination  to  breathe  into  this 
statue  the  breath  of  life. 

Webster's  voice  both  in  volume  and  quality  was 
unsurpassed  by  that  of  any  American  orator.  Even 
at  the  age  of  seventy,  when  he  delivered  his  ora 
tion  before  the  Historical  Society,  his  peroration 
rose  and  swelled  and  reverberated  in  perfect  har 
mony  through  the  great  hall.  The  sonorous  Greek 
of  his  quotation  from  the  book  of  Revelation  re 
sounded  as  if  the  angel  himself  were  there,  who 
"  came  down  from  heaven,  having  great  power,  and 
the  earth  was  lightened  with  his  glory." 

All  the  living  force  of  this  personality,  the  con 
structive  genius  of  the  lawgiver,  the  learning  of  the 
lawyer,  he  put  at  the  service  of  his  country. 

There  are  some  who  think  that  it  elevates  the 
race  to  underrate  the  influence  of  individuals.  It 
has  been  said  that  the  greatest  man  is  but  little  in 
advance  of  his  time,  and  is  to  the  advancing  flood 


Conclusion  179 

what  the  crest  of  the  wave  is  to  the  billow  below. 
The  proposition  is  pleasing  to  small  minds.  Since 
they  cannot  rise  themselves,  it  flatters  their  vanity 
to  diminish  the  interval  which  separates  them  from 
the  leaders  of  mankind.  But  the  plainest  teachings 
of  history  and  the  most  ordinary  facts  of  everyday 
life  must  be  disregarded  in  order  to  maintain  this 
ingenious  hypothesis. 

The  traveller  who  stands  in  the  Union  Station  at 
Chicago  beholds  numerous  tracks  side  by  side,  all 
apparently  leading  in  the  same  direction.  A  man 
at  one  end  of  the  station  moves  an  iron  rod,  and 
one  train,  obedient  to  the  steel  ribbons  on  which  it 
rolls,  passes  away  to  the  East.  He  moves  another, 
and  the  next  train  departs  for  the  West ;  and  so 
they  go,  parallel  at  first,  but  diverging  as  far  as  the 
waters  of  the  Atlantic  are  from  the  Golden  Gate 
of  the  Pacific.  Such  is  the  influence  of  individuals 
upon  nations.  The  bigotry  and  cruelty  of  Philip 
brought  the  proud  Castilian  monarchy  of  Ferdi 
nand  and  Isabella  to  the  dust.  The  weakness  and 
selfishness  of  Charles  humiliated  and  degraded  the 
great  nation  which  with  Cromwell  at  its  head  re 
ceived  the  respect  and  deference  of  all  Europe.  The 
same  army  which  was  discomfited  and  driven  back 
at  Chancellorsville  carried  the  banners  of  the  Repub 
lic  in  triumph  upon  the  bloody  field  of  Gettysburg. 

Great  men  elevate  and  ennoble  their  countrymen. 
In  the  glory  of  our  Webster,  we  find  the  glory  of 
our  whole  country.  His  name  and  his  fame  are  the 
birthright  of  every  American  citizen. 


TABLE  OF  CASES 

PAGE 

Amedie,  The 66 

American  Insurance  Co.  vs.  Canter          ....       70 

Antelope,  The 65 

Atlantic  and  Pacific  Telegraph  Co.  vs.  Philadelphia       .       56 
Bank  of  Augusta  vs.  Earle      .         .         .         .         .         .124 

Caldwell  vs.  North  Carolina    ......       56 

Carver  vs.  Astor's  Lessee         ......       76 

Charles  River  Bridge  vs.  Warren  Bridge          .         .         .121 
Charleston,  City  Council  of,  ads.  Weston        ...       44 
Dartmouth  College  vs.  Woodward  16 

De  Lima  vs.  Bidwell         .......       74 

Diamond  Glue  Co.  vs.  United  States  Glue  Co.        .         .     125 
Dooley  vs.  United  States          ......       74 

Downes  vs.  Bidwell          .......       74 

Fairbanks  vs.  United  States -43 

fortuna.  The  .........       66 

Fourteen  Diamond  Rings  vs.  United  States    ...       74 
Gibbons  vs.  Ogden  .......        47,  152 

Gonzales  vs.  Williams      .......       74 

Hanley  vs.  Kansas  City  Southern  Ry.  Co.       ...       56 

Hawaii  vs.  Mankichi        .......       74 

Head  Money  Cases  .         .         .         .         .         .         .     152 

Henderson  vs.  Mayor  of  New  York         .         .         .  151 

Huus  vs.  New  York  and  Porto  Rico  Steamship  Co.         .       74 

Inman  S.  S.  Co.  vs.  Tinker 153 

La  Jeune  Eugenie     .         .         .         .         .         .         .         .63 

Le  Louis  ..........       66 

Lexington,  The         ........     129 

Luther  vs.  Borden 138 

Madrazo  vs.  Willes .66 

181 


1 82  Table  of  Cases 

PACK 

McCulloch  vs.  Maryland  ......  34 

Miller  vs.  The  State 26 

New  Jersey  Steam  Navigation  Co.  vs.  Merchants  Bank 

of  Boston  ........     130 

New  Orleans  vs.  United  States         .         .         .         .         .118 

New  York  vs.  Miln  .......     143 

Norris  vs.  City  of  Boston          ......     144 

Ogden  vs.  Saunders          .......       67 

Passenger  Tax  Cases        .....      143,  152,  166 

Pawlet,  Town  of,  vs.  Clark      .         .         .         .         .  13 

People  ex  rel.  Metropolitan  Street  Railway  Co.  vs  Tax 

Commissioner   ........       26 

People  vs.  O'Brien  .......  26 

People  vs.  O'Farrell 128 

Prigg  vs.  Pennsylvania     .......     167 

Rhode  Island,  State  of,  vs.   Commonwealth  of  Massa 
chusetts     .........     130 

Smith  vs.  Turner      ........     144 

Society  for  Propagation  of  the  Gospel  in  Foreign  Parts 

vs.  Town  of  New  Haven  .  .  .  .  -15 

Society  for  Propagation  of  the  Gospel  in  Foreign  Parts 

vs.  Town  of  Pawlet  .         .         .         .         .         -92 

Sturges  vs.  Crowninshield        ......       68 

United  States  vs.  Bevans  .  .  .  .  .  15 

Van  Rensselaer  vs.  Kearney 154 

Vidal  vs.  Girard's  Executors  .  .  .  .  .129 

West  River  Bridge  vs.  Dix  and  Towns  of  Brattleboro 

and  Dummerston      .......     134 

Western  Union  Telegraph  Co.  vs.  Borough  of  New 

Hope 56 

Weston  vs.  City  Council  of  Charleston  ....  44 


INDEX 


Admiralty  jurisdiction,  15,  71  ;   in 

inland  waters,  130 
Amendments,  Constitutional,  140 
American  Insurance  Co.  vs.  Canter, 

70 
Atlantic   &   Pacific   Telegraph  Co. 

vs.  Philadelphia,  56 

B 

Ball,  Thomas,  Statue  of  Webster 
by,  178 

Bank,  Baltimore  Branch,  36 

Bank  of  Augusta  vs.  Earle,  124 

Bank  of  the  United  States,  34; 
Power  of  Congress  to  charter,  39 

Bank  of  the  United  States  vs. 
Primrose,  124 

Bankruptcy  law,  67 

Banks,  Act  to  tax,  State  of  Mary 
land,  36 

Banks,  State,  36,  43 

Benton,  Thomas  H.,  sales  of  public 
lands,  76,  78 

Best,  Justice,  on  slave  trade,  66 

Elaine,  James  G.,  action  Republi 
can  party,  1860,  176 ;  opinion 
on  7th  of  March  speech,  164 

Blatchford,  R.  M.,  letter  from 
Webster  on  Passenger  Tax  cases, 
146 

Boundary  controversy,  Rhode  Island 
and  Massachusetts,  130 

Bridge,  Charles  River,  vs.  Warren, 

121 


Calhoun,  John  C.,  last  speech  in 
Senate,  165  ;  opposing  Force  Bill, 
95  ;  slavery  in  U.  S.  territory,  74, 
161  ;  vote  for  Force  Bill,  114 

California,  annexation  and  admis 
sion,  162;  debate  on  admission, 
171 

Carver  vs.  Astor's  Lessee,  76 

Catron,  Justice,  147 

Choate,  Rufus,  Norris  vs.  City  of 
Boston,  145;  Rhode  Island 
boundary  case,  130 

Clay,  Henry,  157;  letter  from 
Webster  on  approaching  Congress 
(1831),  93;  tariff  bill,  114 

Clayton,  John  M.,  tariff  bill,  114 

Cleveland,  Grover,  Failure  of  Con 
gress  to  support,  117 

Colonization,  Negro,  175 

Commerce,  American,  in  foreign- 
built  ships,  133  ;  passenger  travel 
as,  145  ;  power  of  Congress  to 
regulate,  51 

Compromise  of  1850,  172 

Congress,  Power  of,  to  charter  a 
bank,  39  ;  to  govern  acquired  ter 
ritory,  70;  to  regulate  commerce, 
145  ;  to  regulate  immigration. 

145 

Constitution,  New  Hampshire,  19  ; 
Rhode  Island  (Dorr  Rebellion), 
137;  State  of  New  York,  1846, 
formation  of  corporations,  17 


183 


1 84 


Index 


Constitution  United  States,  accepted 
as  a  whole,  99;  analysis  of,  97  ; 
first  to  recognize  supremacy  of 
courts,  2;  not  a  compact  but  a 
union,  102;  not  a  league  but  a 
government,  96,  101  ;  supremacy 
of,  87 

Corporation,  State  as  a,  126 

Corporations,  Formation  of,  under 
Constitution  of  State  of  New 
York,  17;  right  of,  to  transact  busi 
ness  and  bring  suit  in  other  States, 
124 ;  right  of  State  to  repeal 
charter,  26;  rights  of,  under  power 
of  eminent  domain,  135  ;  taxation 
of  a  franchise  in  New  York,  26  ; 
Webster  on  franchise  as  property, 
22 

Cotton,  Interests  of,  demand  slavery, 
1 66 

Crawford,  Rev.  Andrew  J.,  letter 
from  Andrew  Jackson,  114 

Currency,  State  Bank,  Disadvan 
tages  of,  43 

D 

Dane,  Nathan,  Ordinance  of  1787, 

77 
Daniels,  Justice,    147  ;    in   case  of 

the  Lexington,  131 
Dartmouth  College  Case,  15  ;  Story 

manuscript,  27 

Dorr,  Thomas  W.,  Rebellion,  137 
Douglas,  Stephen  A.,  bill  to  repeal 

Missouri  Compromise,  173 
Duval,  Justice,  41 

E 

Emancipation,    Lincoln's   plan  for, 

175 
Emerson,   R.    W.,    Fugitive    Slave 

Law,  157 
Everett,  Edward,   letter  to  Webster 

on  reply  to  Hayne,  86 


Faneuil  Hall,  closed  against  Web 
ster,  169  ;  opened  again,  169 

Fitch,  John,  right  to  use  steam 
vessels  in  New  York  waters,  47 

Florida,  Webster  on  government  of, 

71 

Foot,  S.  A.,  resolution  to  limit  sales 
of  public  lands,  76 

Force  Bill,  brief  for  reply  to  Cal- 
houn,  97  ;  debate  on,  9 ;  intro 
duced,  95  ;  passed,  114;  Webster's 
reply  to  Calhoun,  95 

Franchise,  as  property,  122 ;  emi 
nent  domain  over,  134 

Free  States,  majority  in  Senate,  172 

Fugitive  Slave  Law,  binding  on  all, 
167  ;  passed,  172  ;  trial  by  jury, 

173 

Fulton,  Robert,  right  to  use  steam 
vessels  in  New  York  waters,  47 


Garrison,  William  Lloyd,    Fugitive 

Slave  Law,  162 
Gibbons  vs.  Ogden,  47 
Girard  Will  case,  129 
Gore,  Christopher,  Webster  student 

in  office  of,  12 
Great  Appeal  Case  from  Alabama, 

126 
Grier,  Justice,  147 

H 

Harvey,  Peter,  report  of  conversa 
tion  with  Webster  on  Gibbons  vs. 
Ogden,  56 

Hayes,  R.  B.,  election  of  1876, 
158 

Hayne,  R.  Y.,  speech  on  Foot  reso 
lutions,  76 ;  Webster's  reply  to, 
uttered  and  printed  language  com 
pared,  85  ;  Webster's  summary  of 
Hayne' s  argument,  87 


Index 


185 


Henderson  vs.  Mayor  of  New  York, 

*5i 

Henry,  Patrick,  on  preamble  to 
Constitution,  9 

Hitchcock,  Roswell  D.,  negro 
question,  160 

Holmes  (of  New  Hampshire),  coun 
sel  in  Dartmouth  College  vs, 
Woodward,  29 

Hope  Mills,  80 

Hopkinson,  Joseph,  counsel  in 
Dartmouth  College  vs.  Wood 
ward,  29  ;  counsel  in  McCulloch 
•vs.  Maryland,  36 

Houston,  Samuel,  right  of  Territory 
to  legislate,  165 


Immigration,  143 

Inman   Steamship  Co.    vs.   Tinker, 
153 

J 

Jackson,  Andrew,  letter  to  Rev.  S. 

J.    Crawford,    114;    Webster  on 

veto  of  bill  to  extend  charter  of 

U.  S.  Bank,  40,  116 
Jay,  John,  corrects  Webster  in  Van 

Rensselaer  vs.  Kearney,  155 
Johnson,  Justice,  41 
Jones,    Mr.,    opposing    counsel    in 

McCulloch  vs.  Maryland,  36 

K 

Kent,  Chancellor,  on  Webster's  re 
ply  to  Hayne,  82,  93 
Key  West,  Salvage  court  at,  71 
Kruger,  Oom  Paul,  right  to  inter 
pret  statutes,  21 


Land    grant,     Governor    of     New 
Hampshire  to  town  of  Pawlet,  14 


Letter,  Edward  Everett  to  Webster, 
86  ;  Andrew  Jackson  to  A.  J. 
Crawford,  114  ;  Chief  Justice 
Marshall  to  Webster,  45  ;  Fran 
cis  Lieber  to  Webster,  170 ; 
John  H.  Pleasants  to  Webster, 
84 ;  Stockton  to  Webster,  65  ; 
Fletcher  Webster  to  Webster,  91; 
Webster,  to  Blatchford,  146  ;  to 
Clay,  93 ;  to  Jeremiah  Mason, 
86 ;  to  Enoch  Parsons,  44 ;  to 
William  Pope,  90 ;  to  William 
Sullivan,  94  ;  to  Fletcher  Web 
ster,  141;  to  William  Wirt,  32 

Lexington,  the,  Case  of,  130 

Lieber,  Francis,  letter  to  Webster 
on  speech  for  Constitution  and 
Union,  170 

Lincoln,  Abraham,  comparison  with 
Webster's  7th  of  March  speech, 
iv.,  174;  compensated  emancipa 
tion,  175 

Livingston,  Brockholst,  in  McCul 
loch  vs.  Maryland,  41 

Livingston,  Robert  R.,  right  to 
use  steam  vessels  in  New  York 
waters,  48 

Livy,  motto  for  speech  for  Constitu 
tion  and  Union,  169 

Lodge,  Henry  Cabot,  right  of  seces 
sion,  10 

Lowell,  James  Russell,  slavery,  160  ; 
vote  as  elector  in  1876,  158  ; 
Webster's  attitude  on  slavery,  159 

M 

Marshall,  Chief  Justice,  American 
Insurance  Co.  vs.  Canter,  on 
government  of  acquired  territory, 
72  ;  centennial  of  accession,  6  ; 
Dartmouth  College  vs.  Wood 
ward,  24 ;  Gibbons  vs.  Ogden, 
54,  61;  letter  to  Webster,  45  ; 
McCulloch  vs.  Maryland,  41; 
New  York  vs.  Miln,  144 


1 86 


Index 


Martin,  Luther,  Counsel  in  Mc- 
Culloch  vs.  Maryland,  36 

Mason,  Jeremiah,  Dartmouth  Col 
lege  vs.  Woodward,  28  ;  letter 
from  Webster  on  reply  to  Hayne, 
86 

McCulloch  vs.  Maryland,  34  ;  Jus 
tices  concurring  with  Chief  Justice 
Marshall,  41 

McKinley,  Justice,  Passenger  Tax 
cases,  147 

McLean,  Justice,  Passenger  Tax 
cases,  144,  147 

Mexico,  Cause  of  war  with,  162 

Mexico,  New,  see  New  Mexico 

Miller,  Justice,  Henderson  vs. 
Mayor  of  New  York,  151 

Miller  vs.  The  State,  charter  of  cor 
poration,  26 

Missouri  Compromise  line  in  Texas, 
167 


N 


Napoleon,     decree     against     slave 

trade,  64 

Negro  question,  colonization,  175 
Nelson,     Justice,      Passenger    Tax 

cases,  147 

New  Hampshire,  Bill  of  Rights,  19 
New  Jersey  Steam  Navigation  Co. 
vs.    Merchants    Bank  of    Boston, 
130 

New  Mexico,  annexation,  162  ;  sla 
very  impossible  in,  167 
New  Orleans  vs.  United  States,  118 
New  York  vs.  Miln,  143 
Norris  vs.  City  of  Boston,  144 
Nullification,    78,    81,    93,    96,    99, 
III,  115 


Parsons,  Enoch,   letter  from  Web 
ster  to,  44 


Pauper  immigration,  150 

People,  source  of  all  political  power, 

139 
People   vs.    O'Brien,    franchise    as 

property,  26 
Pierce,  Franklin,  election   of    1852, 

173 

Pinkney,  William,  counsel  in  Mc 
Culloch  vs.  Maryland,  36  ;  motion 
for  re-argument,  Dartmouth  Col 
lege  case,  23 

Pleasants,  John  H.,  letter  to  D. 
Webster  on  reply  to  Hayne,  84 

Pope,  William,  letter  from  Webster 
on  reply  to  Hayne,  90 

Prigg  vs.  Pennsylvania,  167 

Primrose  vs.  United  States  Bank, 
124 


Quarantine,  power  of  State  to  pass 
laws,  150 


R 


Religious  instruction,  Girard  Will 
case,  129 

Representative  government,  Growth 
and  formation  of,  140 

Revolution,  English  (1688),  141 

Richardson,  Chief  Justice,  in  Dart 
mouth  College  case,  19 


Scott,  Sir   William,  Lord   Stowell, 

66 
Scott,    General,    election    of    1852, 

173 

Secession,  80,  98,  106  ;  abolitionists 
in  favor  of  disunion,  162  ;  Peace 
able,  impossible,  168  ;  Webster's 
prophecy  of  war,  importance  of 
postponing,  163 


Index 


187 


Slavery,  157  ;  in  U.  S.  territory, 
74  ;  situation  in  1850,  160  ;  stage 
of  evolution,  161  ;  Webster's  view 
of,  158,  166 

Slave  trade,  cases  cited,  La  Jeune 
Eugenie,  Antelope,  65  ;  Amedie, 
Fortuna,  Le  Louis,  Madrazo  vs. 
Willes,  66  ;  question  of  suppress 
ing,  63 

Smith,  Jeremiah,  Dartmouth  Col 
lege  vs.  Woodward,  28 

Smith  vs.  Turner  (port  of  New 
York),  144 

Society  for  the  Propagation  of  the 
Gospel  in  Foreign  Parts  vs.  Town 
of  New  Haven,  15  ;  vs.  Town  of 
Pawlet,  92 

Specie  payments,  35 

Spencer,  Herbert,  slavery  as  evolu 
tion,  161 

State  rights,  100,  127 

States'  Rights  party  celebration, 
July  4,  1831,  93 

States,  Power  of,  to  tax  immigrant 
passengers,  143 ;  to  tax  instru 
ment  of  National  Government, 

37,  43 

Steam  vessels,  Right  to  use,  in  New 
York  waters,  47 

Stockton,  Commodore,  letter  to 
Webster  on  slave  trade,  64 

Story,  Justice,  Dartmouth  College 
vs.  Wood%vard,  25  ;  La  Jeune 
Eugenie,  65  ;  McCulloch  vs. 
Maryland,  41;  manuscript  review 
on  Webster  in  Dartmouth  Col 
lege  case,  Preface  iv.,  29  ;  New 
York  vs.  Miln,  144  ;  Webster's 
argument,  Gibbons  vs.  Ogden,  59 

Stowell,  Lord,  Sir  William  Scott, 
on  slave  trade,  63 

Sullivan,  William,  Counsel  in  La 
Jtune  Eugenie,  64  ;  letter  from 
Webster  on  Nullification  Ordi 
nance,  94 


Swayne,  Justice,  in  Inman  S.  S.  Co. 
vs.  Tinker,  153 


Taney,  Chief  Justice,  great  Appeal 
Case  from  Alabama,  128  ;  Passen 
ger  Tax  cases,  145 

Tariff,  Clay's  bill,  1833,  94 ;  Nulli 
fication  Ordinance,  94 ;  Jackson's 
opinion  of,  115  ;  Passenger  Tax, 
145  ;  protective  tariff  claimed  to 
be  unconstitutional,  80 

Tax,  power  of  States  to  tax  immi 
grant  passengers,  143  ;  to  tax  in 
strument  of  National  Government, 

37,  43 
Taxation,  of  banks,  37  ;  Uniformity 

of,  in  United  States,  149 
Texas,  Annexation  of,  162  ;  Missouri 

Compromise  line  in,  167 
Tilden,  Samuel  J.,  election  of  1876, 

158 

Town  of  Pawlet  vs.  Clark,  13 
Treaty,     Louisiana,     118;      Paris, 

1783,  8  ;  Spain,  Florida  Purchase, 

70,  73  ;  United  States  and  Great 

Britain,    Passenger  Tax  conflicts 

with,   148 

U 

United  States  Bank,  see  Bank 
United   States  Bank,   Second,    35 ; 
Jackson's  veto,  40,  116 


Van  Rensselaer  vs.  Kearney,  154 
Van  Rensselaer,  John  J.  and  Jere 
miah,  154 
Vidal  vs.  Girard's  Executors,  129 

W 

Warren  Bridge,  122 
Washington,  Justice,  McCulloch  vs. 
Maryland,  41 


1 88 


Index 


Wayne,  Justice,  in  Passenger  Tax 
cases,  144;  on  Webster's  argu 
ments,  Gibbons  vs.  Ogden,  60 

Webster,  Daniel,  birth,  early  condi 
tions,  7 ;  student,  early  profes 
sional  life,  marriage,  election  to 
Congress,  12  ;  criticism  and  ap 
probation  of  speech  for  the  Con 
stitution  and  the  Union,  169,  170  ; 
funeral,  Preface  in.;  letter  to 
Wirt  on  Dartmouth  College  case, 
32  ;  on  his  own  argument  in  Gib 
bons  vs.  Ogden,  56 ;  personal  at 
tributes,  178  ;  Secretary  of  State, 
129 ;  speech  at  dinner  in  New 
York,  March  10,  1831,  82  ;  speech 
before  New  York  Historical  So 
ciety,  178  ;  variety  of  talent,  91 


Webster,  Fletcher,  letter  to  D. 
Webster  on  reply  to  Hayne,  91; 
letter  from  Webster,  141 

West  River  Bridge  Co.  vs.  Dix  and 
Towns  of  Brattleboro  and  Dum- 
merston,  134 

Whittier,  J.  G.,  Webster's  attitude 
on  slavery,  159 ;  lines  on  Web 
ster,  178 

Wilkins,  William,  introduces  Force 
Bill,  95 

Wirt,  William,  Counsel  Dartmouth 
College  Case,  29  ;  in  McCulloch 
vs.  Maryland,  36 ;  letter  from 
Webster  on  Dartmouth  College 
case,  32 

Wood,  George,  counsel  in  Van 
Rensselaer  vs.  Kearney,  155 


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1607-1904 

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COLONIZATION,  1607-1697. 

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period  of  the  appearance  of  the  New  West  in  politics  and  of  steam  power  in 
manufacture  and  transportation. 

PART  SIX. 

THE  GREAT  DEBATE,  1846-1860. 
The  slavery  discussion  will  be  the  central  theme. 

PART  SEVEN. 

CIVIL  WAR  AND  RECONSTRUCTION,  1861-1869. 
The  War  of  Secession  and  the  aftermath  of  trouble. 

PART  EIGHT. 

THE  NEW  NORTH  AND  THE  NEW  SOUTH,  1870-1885. 
The  intellectual  and  economic  awakening,  South  and  North. 

PART  NINE. 

ECONOMIC  CRISES,  1886-1897. 

The  industrial  history  of  our  country  presented  extremely  significant 
phases  in  the  times  of  Cleveland  and  Harrison. 

PART  TEN. 

A  WORLD  POWER,  1898-1904. 

From  the  Spanish-American  War  until  the  year  1904  will  be  the  period  con 
sidered  in  the  final  part  of  this  history.  In  this  part  will  be  summarized  the 
results  of  three  centuries  of  progress  in  population,  in  politics,  domestic  and 
international,  in  industry,  in  commerce,  and  in  civilization. 

AUTHORSHIP. 

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ation,  National  Educational  Association,  etc.,  etc. 

New  York— Q.  P.  PUTNAM'S  SONS— London 


Christopher  Columbus 

His  Life,  His  Work,  His  Remains 

As  Revealed  by  Original  Printed  and  MSS.  Records,  together 

with  an  Essay  on  Peter  Martyr  of  Anghera  and  Bartolome 

de  las  Casas,  the  first  Historians  of  America. 


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